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The 



NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



EXECUTIVE ORDER 



IN ADDITION 

Voting Rights Act 

EHNR - Environmental Management 



COHu 
TITUl 



.IN LEG I BUS, 



t*HlSTVL&\f 



PROPOSED RULES 

Cosmetic Art Examiners 

Cultural Resources 

Environment, Health, and Natural Resources 

Human Resources 

Justice 

State Health Plan Purchasing Alliance Board 



LIST OF RULES CODDTED 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



ISSUE DATE: October 3, 1994 



RECEIVED 



OCT 5 1994 

KATHRINE R. EVERETT 
| LAW LIBRARY 






Volume 9 • Issue 13 • Pages 957 - 1062 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODF. 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter i50B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed under G.S. 1 50B-21 .2 must be published in the Register. 
The Register will typically comprise approximate!}' fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Office of Administrative Hearings, P. O. Drawer 27447, 
Raleigh, N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the. 
specific statutory authority, please consult Article 2A of Chapter 1 50B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days must 
elapse following publication of the notice in the North Carolina 
Register before the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule . An agency may not adopt a rule that differs substantially from the 
proposed form published as part of the public notice, until the adopted 
version has been published in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue tempt 
rary rules. Within 24 hours of submission to OAH, the Codifier c 
Rules must review the agency's written statement of findings of nee 
for the temporary rule pursuant to the provisions in G.S. 150B-21.1 
the Codifier determines that the findings meet the criteria in G.i 
150B-21.1, the rule is entered into the NCAC. If the Codifif 
determines that the findings do not meet the criteria, the rule is retume 
to the agency. The agency may supplement its findings and resubm 
the temporary rule for an additional review or the agency may respon 
that it will remain with its initial position. The Codifier, thereafter, wi 
enter the rule into the NCAC. A temporary rule becomes effectiv 
either when the Codifier of Rules enters the rule in the Code or on th 
sixth business day after the agency resubmits the rule without changi 
The temporary rule is in effect for the period specified in the rule or 1 8 
days, whichever is less. An agency adopting a temporary rule mui 
begin rule-making procedures on the permanent rule at the same tim 
the temporary rule is filed with the Codifier. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is a compilatio 
and index of the administrative rules of 25 state agencies and 3 
occupational licensing boards. The NCAC comprises approximate! 
15,000 letter size, single spaced pages of material of which approx 
mately 35% is changed annually. Compilation and publication of th 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency i 
assigned a separate title which is further broken down by chapter 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of tw 
dollars and 50 cents ($2.50) for 10 pages or less, plus fiftee 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling 
excess of 15,000 pages. It is supplemented monthly wit 
replacement pages. A one year subscription to the fui 
publication including supplements can be purchased f( 
seven hundred and fifty dollars ($750.00). Individual vo 
umes may also be purchased with supplement service. R< 
newal subscriptions for supplements to the initial publicatio 
are available. 

Requests for pages of rules or volumes of the NCAC should 1 
directed to the Office of Administrative Hearings. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, paj 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volun 
1, Issue 1, pages 101 through 201 oftheNorth Carolina Registerissue 
on April 1, 1986. 



FOR INFORMATION CONTACT: Office of Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 27611-7447, (919) 733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



ISSUE CONTENTS 



I. EXECUTIVE ORDER 

Executive Order 61 957 

II. IN ADDITION 

Voting Rights Act 958 

EHNR - Environmental Management 
Commission 959 

III. PROPOSED RULES 
Cultural Resources 

Arts Council 960 

Environment, Health, and 
Natural Resources 

Health Services 1000 

Marine Fisheries Commission . . . 989 
Wildlife Resources Commission . . 999 
Human Resources 

Medical Assistance 964 

Mental Health, Developmental 
Disabilities and Substance Abuse 

Services 961 

Independent Agencies 
State Health Plan Purchasing 

Alliance Board 1030 

Justice 
Criminal Justice Education and 

Training Standards 981 

Sheriffs' Education and Training 

Standards 986 

Licensing Board 
Cosmetic Art Examiners 1027 

D7. LIST OF RULES CODIFIED ... 1041 

V. RRC OBJECTIONS 1044 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1045 

Text of Selected Decisions 
94 CPS 0468 1056 

VII. CUMULATIVE INDEX 1060 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

to RRC 


** Earliest 

Effective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures. 
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Revised 03/94 



EXECUTIVE ORDER 



EXECUTIVE ORDER NO. 61 

AMENDING THE NORTH CAROLINA 

EMERGENCY RESPONSE COMMISSION 

By the authority vested in me as Governor by the 
laws and Constitution of North Carolina, IT IS 
ORDERED: 

Section 1 of Executive Order Number 17 is 
hereby amended to read: 

Section 1. Creation and Membership. 

There is created the North Carolina Emergency 
Response Commission, hereinafter referred to as 
the "Commission." The Commission shall consist 
of not less than twelve members and shall be 
composed of at least the following persons: 

Director, Division of Emergency Man- 
agement, Department of Crime Control 
and Public Safety, who shall serve as 
Chairperson; 

Coordinator, State Highway Patrol Haz- 
ardous Materials, Department of Crime 
Control and Public Safety; 

Safety Director, Department of Agricul- 
ture; 

Supervisor, Facilities Assessment Unit, 
Division of Environmental Management, 
Department of Environment, Health, and 
Natural Resources; 

Director, Solid Waste Management Divi- 
sion, Department of Environment, 
Health, and Natural Resources; 

Director, Radiation Protection Division, 
Department of Environment, Health, and 
Natural Resources; 

Director, Office of Waste Reduction 
(Pollution Prevention Program), Depart- 
ment of Environment, Health, and Natu- 
ral Resources; 

Director, Emergency Planning, Division 
of Highways, Department of Transporta- 
tion; 

Chief, Transportation Inspection, Divi- 
sion of Motor Vehicles (Enforcement 
Section), Department of Transportation; 



Manager, Training/ Standards Program, 
Fire and Rescue Services Division, De- 
partment of Insurance; 

Chief, Emergency Medical Services, 
Division of Facility Services, Department 
of Human Resources; and 

Assistance Deputy Commissioner of 
Labor for Occupational Safety and 
Health, Department of Labor; and 

Six at-large members from local govern- 
ment and private industry with technical 
expertise in the emergency response field 
may be appointed by the Governor and 
serve for terms of two (2) years at the 
pleasure of the Governor. 

This Executive Order shall be effective immedi- 
ately. 

Done in Raleigh, North Carolina, this the 26th 
day of August, 1994. 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



957 



IN ADDITION 



1 his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



U.S. Department of Justice 

Civil Rights Division 

DLP:ZJB:EMP:emr Voting Section 

DJ 166-012-3 P.O. Box 66128 

94-2890 Washington, DC. 20035-6128 

September 2, 1994 

David A. Holec, Esq. 

City Attorney 

P. O. Box 1388 

Lumberton, North Carolina 28359-1388 

Dear Mr. Holec: 

This refers to the annexation [Ordinance No. 1452 (1994)] to the City of Lumberton in Robeson 
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act 
of 1965, as amended, 42 U.S.C. 1973c. We received your submission on July 6, 1994. 

The Attorney General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 
C.F.R. 51.41). 



Sincerely, 

Deval L. Patrick 

Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



958 9:13 NORTH CAROLINA REGISTER October 3, 1994 



IN ADDITION 



STATE OF NORTH CAROLINA 
ENVIRONMENTAL MANAGEMENT COMMISSION 



PUBLIC NOTICE OF AVAILABILITY OF 303(d) LIST 



Announcement is hereby given of the availability of North Carolina's 303(d) list. Section 303(d) of the Clean 
Water Act requires states to develop a list of waters not meeting water quality standards or which have use 
impairment and where existing control strategies for point and nonpoint source pollution will not achieve the 
standards or uses designated for that waterbody. North Carolina has developed its 303(d) list, and the list is 
available for review and comment. 

INFORMATION: A copy of the 303(d) list is available by writing or calling: 

Ruth C. Swanek, Supervisor 

Instream Assessment Unit 

Water Quality Section 

N.C. Division of Environmental Management 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

Telephone (919) 733-5083 

Persons wishing to comment on the list are invited to submit their comments in writing to the above address 
no later than November 2, 1994. All comments received prior to that date will be considered when revising 
the list. 

The 303(d) list and supporting information are on file at the Division of Environmental Management, 512 N. 
Salisbury Street, Archdale Building, Raleigh, North Carolina. They may be inspected during normal office 
hours. Copies of the information on file are available upon request and payment of costs of reproduction. 



Date: 



September 9, 1994 



Steve W. Tedder, Chief 

Water Quality Section 

Division of Environmental Management 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



959 



IN ADDITION 



TITLE 7 - DEPARTMENT OF 
CULTURAL RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Arts Council 
intends to amend rules cited as 7 NCAC 12 .0002, 
. 0003, . 0005 and adopt . 0006. 

1 he proposed effective date of this action is 
January 1, 1995. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A demand for a public hearing must be 
made in writing and mailed to Jean W. 
McLaughlin, Visual Arts Director, North Carolina 
Arts Council, Department of Cultural Resources, 
Raleigh, NC 27601-2807. The demand must be 
made within 15 days of the notice. 

JXeason for Proposed Action: These rules are 
being requested because of ratification of Article 
47 A of Chapter 143 of the General Statutes by the 
1994 General Assembly. 

(comment Procedures: Any interested person may 
submit written comments on the proposed rules by 
mailing the comments to Jean W McLaughlin, 
Visual Arts Director, North Carolina Arts Council, 
Department of Cultural Resources, Raleigh, NC 
27601-2807 within 30 days after the proposed 
rules are published or until the date of any public 
hearing held on the proposed rule, whichever is 
longer. 

CHAPTER 12 - ART WORKS EV 
STATE BUILDEVGS PROGRAM 

.0002 DISBURSEMENT OF FUNDS 

Th e Offic e of Stat e Budg e t and Manag e m e nt will 
approv e — the — transf e r — of all — funds — det e rmin ed 
appropriat e for th e acquisition of art from th e 
appropriat e — capital — improvem e nt — cod e — te — the 
D e partm e nt — ef- — Cultural — Resourc e s. Upon 

notification by the Department of Cultural 
Resources, the using agency shall transfer the 
funds for the administrative costs of this program 
and for the repair and conservation of works of art 
in the Artworks for State Buildings collection to 
the Department of Cultural Resources. Upon 

notification by the Department of Cultural 
Resources, the using agency shall issue a check or 



checks for the costs of acquiring the artworks 
made payable as directed by the Department- 
Checks shall be returned to the Department of 
Cultural Resources for mailing. 

Statutory Authority G.S. 143-408.4; 143-408.5. 

.0003 PROGRAM ADMINISTRATION 

The Department of Cultural Resources, through 
the North Carolina Arts Council, shall establish a 
single administrative fund for the Art Works m for 
State Buildings Program. No more than %% 20% 
of available program funds may be applied to the 
administration of the program. The North 
Carolina Arts Council may supplement funding for 
program administration. 

Statutory Authority G.S. 143-408.4. 



.0005 
The 

(1) 



(2) 

(3) 
(4) 



SELECTION AND EVSTALLATION 

North Carolina Arts Council shall: 

coordinate the input and involvement of 

the using owning agency in the selection 

process; 

submit for approval to the Art Works « 

for State Buildings committee., as 

established by OS, 143-408. 5(b), the 

project artist selection plan; 

advertise the need for artist services in 

the North Carolina Purchase Directory; 

appoint a pre-seleetion committee 

comprised of a minimum of three arts 

professionals, directed by the Public Art 

Administrator, to recruit and screen 

artists of exceptional merit; 

submit for approval to the Art Works ie 

for State Buildings committee the artist(s) 

recommended through the approved plan; 

contract with artist(s) and oversee the 

completion of commissioned art work(s); 

and 

coordinate with the Department of 

Administration, the using owning agency 

and the designer to arrange for 

installation of work(s) of art. 

{&) own all works of art acquired under this 

aet — and — maintain — r e cords — of th e — aft 
works; 

{9} provid e condition r e ports on art works 

and r e qu es t funds as noooGsary for th e 
on going maintenance of the art works; 

{\Q) provide the owning ag e ncy with a lett e r 

ef- — agreement — whioh — spooifi e o — routin e 
allowabl e maint e nanc e . 



(5) 
(6) 
(7) 



960 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



Statutory Authority G.S. 143-408.4; 143-408.5. 

.0006 MAINTENANCE, REPAIR 
AND CONSERVATION 

(a) The North Carolina Arts Council shall 
provide each using agency with instructions for 
routine maintenance. The agencies shall refer any 
need for repair or conservation beyond routine 
allowable maintenance to the North Carolina Arts 
Council for professional care and handling. 

(b) The North Carolina Arts Council shall 
provide condition reports on artworks and request 
additional funds as necessary for the ongoing 
repair and conservation of the artworks. 

Statutory Authority G.S. 143-408.4; 143-408.5. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Commission for Mental Health, 
Developmental Disabilities and Substance Abuse 
Services intends to adopt rules cited as 10 NCAC 
15 A .0701 - .0705; 18L .1601 - .1606. 

lhe proposed effective date of this action is 
January 1, 1995. 

lhe public hearing will be conducted at 1:30 
p.m. on November 1 , 1994 at the Sheraton Inn 
University Center, 2800 Middleton Avenue, Dur- 
ham, NC 27705. 

Ixeasonfor Proposed Action: 
10 NCAC 15A .0701 - .0705 - To clarify roles and 
scope of responsibility of the State psychiatric 
hospitals, Dorothea Dix Hospital Deaf Unit staff, 
and the Regional adult coordinators of mental 
health services for the deaf in admitting deaf 
clients into State psychiatric hospitals and transfer- 
ring deaf clients to the specialized Deaf Unit at 
Dorothea Dix Hospital. 

10 NCAC 18L .1601 - .1606 - Federal regulations 
pursuant to Part H of the Individuals with Disabili- 
ties Education Act stipulate that the lead agency 
for the State infant/toddler program 
(DMH/DD/SAS) develop procedures for assuring 
the availability of a surrogate parent for children 
participating in early intervention who require this 
service. 



Ksomment Procedures: Any interested person may 
present comments by oral presentation or 
submitting a written statement. Persons wishing to 
make oral presentations should contact Charlotte 
Tucker, Division ofMH/DD/SAS, 325 N. Salisbury 
St. , Raleigh, NC 27603, 919-733-4774. mitten 
comments will be accepted through November 2, 
1994. Time limits for oral remarks may be 
imposed. Fiscal information regarding these rules 
is available from the Division, upon request. 

CHAPTER 15 - MENTAL HEALTH 
HOSPITALS 

SUBCHAPTER 15A - GENERAL 
RULES FOR HOSPITALS 

SECTION .0700 - ADMISSION OF DEAF 

CLDZNTS TO STATE PSYCHIATRIC 

HOSPITALS AND TRANSFER OF DEAF 

CLIENTS TO DOROTHEA DLX HOSPITAL 

.0701 PURPOSE AND SCOPE 

(a) The purpose of the rules in this Section is to 
set forth procedures for State psychiatric hospitals 
when establishing policy for the: 

(1) admission of deaf clients to State psy- 
chiatric hospitals; and 

(2) transfer of deaf clients from State psy- 
chiatric hospitals to the Dorothea Dix 
Hospital Deaf Unit (DDHDU). 

(b) These Rules shall be used in conjunction 
with the transfer requirements in G.S. 122C-206 
and rules contained in 10 NCAC 15A .0100. 

Statutory Authority G.S. 122C-206; 143B-147. 

.0702 DEFINITIONS 

For the purpose of the rules in this Section, the 
following terms shall have the meanings specified: 

(1) "Certified interpreter" means an inter- 
preter who is certified by the National 
Registry of Interpreters for the Deaf 
(NRJD). or has received an A or B de- 
gree in the North Carolina Interpreter 
Classification System. 

(2) "Clinical impressions" mean information 
provided by the Regional Adult Coordi- 
nator of Mental Health Services for the 
Deaf to assist in differentiating psychiat- 
ric conditions from the cultural norms of 
deafness. 

(3) "Deaf client" means an individual who: 
(a) is admitted to a State psychiatric hospi- 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



961 



PROPOSED RULES 



tal and has a severe to profound hearing 
loss; 

(b) utilizes any modality of sign language 
as the primary means of 
communication; or 

(c) would benefit from a signing 
environment. 

(4) "Dorothea Dix Hospital Deaf Unit" 
means the statewide 17-bed co-ed 
psychiatric unit for deaf adults (age 18 
and above) located on the Dorothea Dix 
Hospital campus. 

(5) "Regional adult coordinator of mental 
health services for the deaf means the 
professional who provides mental health 
services for deaf adults through the 
Division's designated regional deaf 
service centers. 

Statutory Authority G.S. 122C-206; 143B-147. 

.0703 ADMISSION OF DEAF CLIENTS 
TO STATE PSYCHIATRIC 
HOSPITALS 

(a) Except for Dorothea Dix Hospital, upon 
admission of a client to a State psychiatric 
hospital, the hospital shall adhere to the following 
procedures: 

(1) within 24 hours, the responsible 
professional designated by the hospital 
director shall notify the Regional Adult 
Coordinator of Mental Health Services 
for the Deaf to arrange an assessment 
of the deaf client; 

(2) within 60 hours of notification by the 
hospital. the Regional Adult 
Coordinator shall perform the 
assessment which shall become part of 
the primary client record and shall 
include, but not be limited to: 

(A) an evaluation of the deaf client's 
language and communication abilities; 
cultural and social information; 



IB) 



clinical impression; and 

recommendations. 
(b) Each State psychiatric hospital that admits a 
client shall be responsible for obtaining and 
providing interpreter services from the time of 
admission until the client is transferred. 

Statutory Authority G.S. 122C-206; 143B-147. 

.0704 TRANSFER OF DEAF CLIENTS 
TO THE DOROTHEA DIX DEAF 
UNIT 



(a) A voluntarily admitted deaf client, who has 
been determined by the treatment team to require 
a hospital stay of \5 days or more, shall be 
eligible for transfer to the DDHDU at the time of 
such determination. 

(b) An involuntarily admitted deaf client who, 
after the initial court hearing is committed shall be 
eligible for transfer to the DDHDU after the initial 
court hearing. 

(c) Upon transferring a client to the DDHDU. 
as determined in Paragraphs (a) or (b) of this Rule, 
the responsible professional at the sending facility 
shall: 

(1) comply with the transfer requirements 
set forth in GJL 122C-206 and JK) 
NCAC 15A .0100; and 

(2) explain and ensure that the process for 
transfer is interpreted by the Regional 
Coordinator or a certified interpreter. 

Statutory Authority G.S. 122C-206; 143B-147. 

.0705 DOROTHEA DIX HOSPITAL 
DEAF UNIT 

(a) The Director of Admissions at Dorothea Dix 
Hospital shall forward the information required in 
Rule .0704 of this Section to the Coordinator of 
the Deaf Unit. 

(b) The Director of Admissions, the Coordinator 
of the Deaf Unit, and the responsible professional 
at the sending facility shall mutually determine the 
date of transfer. 

(c) The Director of Admissions and the 
Coordinator of the Deaf Unit may refuse to accept 
a transfer if the client is determined to be 
inappropriate for transfer: 

(1) the Coordinator of the Deaf Unit shall 
consult with the State Coordinator of 
Mental Health Services for the Deaf; 
and 

(2) such refusal of transfer shall be 
documented by both facilities involved, 
in order to provide background 
information should a review of the 
decision be requested. 

(d) The Dorothea Dix Hospital Admissions 
Office shall: 

(1) complete a new " Identification/Face 
Sheet-Form A" upon receiving a 
transferred client; and 

(2) incorporate into the primary client 
record, information which is generated 
by the DDHDU. 

{e} The DDHDU treatment team and the 
appropriate area program shall be responsible for 



962 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



discharge planning, and shall ensure that: 

(1) all transferred clients shall be directly 
discharged from the DDHDU to the 
community: 

(2) a copy of the aftercare plan is shared 
with the appropriate Regional 
Coordinator upon consent of the client, 
the legally responsible person, and with 
the sending hospital: and 

(3) transportation for discharged clients 
shall be provided in accordance with 
established transportation policy of 
Dorothea Dix Hospital. 

Statutory Authority G.S. 122C-206; 143B-147. 

CHAPTER 18 - MENTAL HEALTH: 
OTHER PROGRAMS 

SUBCHAPTER 18L - PROGRAM 

COMPONENT OPERATIONAL 

STANDARDS 



interagency council. 
(c) The Area Program Director, or a designee, 
serving the county of the child's legal residence 
shall select the surrogate parent. 

Statutory Authority G.S. 143B-147; 20 U.S.C. 
Sections 1401 et. seq., 1471 et. seq. 

.1603 RESPONSIBILITIES OF A 
SURROGATE PARENT 

A surrogate parent shall have the responsibility 
of being an active spokesperson for a child in 
matters related to the: 



in 

£21 



£31 



evaluation and assessment of the child: 
development and implementation of the 
child's IFSP. including annual 
evaluations and periodic reviews: and 
ongoing provision of early intervention 
services to the child. 



Statutory Authority G.S. 143B-147; 20 U.S.C. 
Sections 1401 et. seq. , 1471 et. seq. 



SECTION .1600 - SURROGATE PARENTS 

FOR ELIGIBLE INFANTS AND TODDLERS 

IN EARLY INTERVENTION SERVICES 

.1601 CmCUMSTANCES REQUIRING 
SURROGATE PARENTS 

The area program shall assure the availability of 
a surrogate parent for infants and toddlers eligible 
for early intervention services when: 

(1) a biological parent or guardian cannot be 
identified; 

(2) efforts to locate the parent are 
unsuccessful: or 

(3) the child is involved in a voluntary 
placement agreement or is placed in 
protective custody through the local 
Department of Social Services. 

Statutory Authority G.S. 143B-147; 20 U.S.C. 
Sections 1401 et. seq. , 1471 et. seq. 

.1602 DDENTD7YING NEED FOR 
AND SELECTION OF A 
SURROGATE PARENT 

(a) The child service coordinator shall be 
responsible for identifying the need for a surrogate 
parent. 

(b) Identification shall be based on any pertinent 
information and input from: 

(1) the local Department of Social Services; 
and 

(2) anyone serving on the infant/toddler 



.1604 PRIORITIES FOR SELECTION 
OF A SURROGATE PARENT 

(a) The area program shall make every effort to 
select a surrogate parent who has close ties to the 
child. 

(b) In instances when children are placed in 
foster care or in the care of another individual, the 
biological parents or guardian shall be given first 
consideration to act as the surrogate parent. 

(c) The following order of priority shall then be 
considered when selecting the surrogate parent: 

(1) person "acting as a parent" - A 
grandparent, governess. neighbor, 
friend, or private individual who is 
caring for the child: 
interested relative; 



£21 
£31 
£41 
£51 



foster parent; 

friend of the child's family; or 

other individuals. 



(d) The biological parent or guardian shall be 
informed about the selection of the surrogate 
parent. 

Statutory Authority G.S. 143B-147; 20 U.S.C. 
Sections 1401 et. seq., 1471 et. seq. 

.1605 CRITERIA FOR SELECTION 
PROCESS 

Anyone who serves as a surrogate parent shall: 
(1) not have conflicting interests with those 

of the child who is represented; 
£2} have knowledge and skills that ensure the 



9:13 



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October 3, 1994 



963 



PROPOSED RULES 



best possible representation of the child; 

(3) not have any prior history of abuse or 
neglect; or 

(4) not be an employee of the agency 
involved in the provision of early 
intervention or other services for the 
child. However, a person who otherwise 
qualifies to be a surrogate parent is not 
considered an employee based on being 
paid by a public agency to serve as a 
surrogate or foster parent. 

Statutory Authority G S. 143B-147; 20 U.S.C. 
Sections 1401 et. seq. , 1471 et. seq. 

.1606 TRAINING REQUIREMENTS 
FOR A SURROGATE PARENT 

(a) Anyone who serves as a surrogate parent, 
and is not related to the child, shall have 
participated in training provided by or approved by 
the area mental health, developmental disabilities 
and substance abuse program. 

(b) Training shall include, but not be limited to, 
the following topics: 

(1) Part H of the Individuals with 
Disabilities Education Act, regarding 
parents' rights, entitlements for 
children, and services offered; 
developmental and emotional needs of 
eligible infants and toddlers; 
available advocacy services; and 
relevant cultural issues if the child's 
culture is different from that of the 
surrogate parent. 

(c) The level of training approach shall be based 
on needs of the surrogate parent, as determined by 
the surrogate parent in conjunction with the area 
program. 

Statutory Authority G.S. 143B-147; 20 U.S.C. 
Sections 1401 et. seq. , 1471 et. seq. 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the DHR - Division of Medical 
Assistance intends to amend rule cited as 10 NCAC 
26B .0110. 



m 

(4) 



1 he proposed effective date of this action 
January 1, 1995. 



is 



1 he public hearing will be conducted at 1:30 



p.m. on November 3, 1994 at the North Carolina 
Division of Medical Assistance, 1985 Umstead 
Drive, Room 132, Raleigh, NC 27603. 

ixeason for Proposed Action: Amendment neces- 
sary to cover non-emergency ambulance transpor- 
tation whether the services are specialized or 
routine care that cannot be provided in the 
recipient's residence and the individual's health 
would be endangered by any other means of 
transport. 

K^omment Procedures: Written comments 

concerning this amendment must be submitted by 
November 3, 1994, to: Division of Medical 
Assistance, 1985 Umstead Drive, Raleigh, NC 
27603 ATTN: Clarence Ervin, APA Coordinator. 
Oral comments may be presented at the hearing. 
In addition, a fiscal impact statement is available 
upon written request from the same address. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26B - MEDICAL 
ASSISTANCE PROVIDED 

SECTION .0100 - GENERAL 

.0110 AMBULANCE SERVICES 

(a) Reimbursement for ambulance services shall 
be made only for transportation to the nearest 
facility (hospital, nursing home, or intermediate 
care facility), or for transportation to a phyoioian's 
doctor's office or clinic in an e morgonoy when th e 
physician's treatment in n e c e ssary to stabiliz e a 
patient onrout e to th e n e ar e st appropriate faoility. 
that provides medical services. 

(b) Services provided by an ambulance provider 
under the Medicaid program must be 
demonstrated to be medically necessary and are 
subject to limitations described herein. Medical 
necessity is indicated when the patient's condition 
is such that any other means of transportation 
would endanger the patient's health. Ambulance 
transportation is not considered medically 
necessary when any other means of transportation 
can be safely utilized. 

(c) Emergency ambulance transportation for the 
client to receive immediate and prompt medical 
services arising in an emergency situation. 
Emergency transportation to a physicians' office is 
covered only if all the following, conditions are 
met: 



964 



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October 3, 1994 



PROPOSED RULES 



(1) The patient is enroute to a hospital. 

(2) There is medical need for a professional 
to stabilize the patient's condition. 

(3) The ambulance continues the trip to the 
hospital immediately after stabilization. 

(d) Non-emergency ambulance transportation to 
and from a physician directed office, clinic, or 
other medical facility in which the individual is an 
inpatient is covered in the following situation: 

(1) Medical necessity is indicated when the 
use of other means of transportation is 
medically contraindicated because it 
would endanger the patient's health. 
This refers to clients who require 
transport by stretcher. 

(2) Client is in need of medical s pecialized 
services that cannot be provided in the 
place of residence. 

(3) Return transportation from a facility 
which has capability of providing total 
care for every aspect of injury or 
disease to a facility which has fewer 
resources to offer highly specialized 
care. 

(e) When claiming Medicaid reimbursement, 
providers of ambulance services must submit 
documentation to show that ambulance services 
were medically necessary. At a minimum the 
documentation must include: 

(1) Proper completion of claim form with 
recipient's medical condition described 
in sufficient detail to demonstrate that 
transportation by any other means 
would be medically inappropriate. 

(2) Legible copy of ambulance call report 
which indicates purpose for transport, 
aH treatments and notes patient's 
response. 

(3) Sufficient description of patient's 
condition to justify that patient could 
only be moved by stretcher. 

(f) Prior approval is required for non-emergency 
transportation for recipients to receive out-of-state 
services or to return to North Carolina or nearest 
appropriate facility. 



Authority G.S. 
440.170. 



108A-25(b); 108A-54; 42 C.F.R. 



^c^^***>i<*^c^c5i<!t(jji:%^:*%5i; 



NCAC SOB .0101 - .0102, .0201, .0204, .0207, 
.0311, .0313, .0402 - .0404, and .0408. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 1:30 
p.m. on November 3, 1994 at the N. C. Division of 
Medical Assistance, 1985 Umstead Drive, Room 
132, Raleigh, N. C. 27603. 

MXeason for Proposed Action: 
10 NCAC SOB .0101, .0201, .0204, ,0207, .0311, 
.0313, .0402 - .0404 - Rules confirms action of the 
1994 General Assembly to automatically grant 
Medicaid eligibility to recipients or SSI payments. 
10 NCAC 50B .0102, .0408 - The legislature 
recently adopted provisions mandating Medicaid 
coverage for all children below the poverty level. 

Lsomment Procedures: Written comments con- 
cerning these amendments must be submitted by 
November 3, 1994, to: Division of Medical Assis- 
tance, 1985 Umstead Drive, Raleigh, N. C. 27603, 
ATTN: APA Coordinator. Oral comments may be 
presented at the hearing. In addition, a fiscal 
impact statement is available upon written request 
from the same address. 

Editor's Note: 10 NCAC SOB .0102 was filed as 
a temporary amendment effective September 12, 
1994 and October 1, 1994, 10 NCAC SOB .0408 
was filed as a temporary amendment effective 
September 12, 1994 and October 1, 1994 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 
10 NCAC SOB .0403 Paragraph (n) is proposed to 
be deleted with a November 1, 1994 effective 
date. It is published in this Re gister in italics. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER 50B - ELIGIBILITY 
DETERMINATION 

SECTION ,0100 - COVERAGE 
GROUPS 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rules cited as 10 



.0101 MANDATORY 

The following groups required by 42 U.S.C. 
1396a (a) (10) shall be eligible for Medicaid: 
(1) Recipients receiving AFDC. 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



965 



PROPOSED RULES 



(2) Deemed recipients of AFDC including: 

(a) Individuals denied AFDC solely be- 
cause the payment amount would be 
less than ten dollars ($10.00), 

(b) Participants in AFDC work supplemen- 
tation programs approved in the AFDC 
State Plan, 

(c) Individuals deemed to be AFDC recipi- 
ents for four months following termina- 
tion of AFDC due to collection or 
increased collection of child support, 

(d) Individuals receiving transitional Med- 
icaid as described in 42 U.S.C. 1396s 
when AFDC eligibility is lost due to 
increased earnings, 

(e) Individuals for whom an adoption assis- 
tance agreement is in effect or foster 
care maintenance payments are being 
made under Title IV E of the Social 
Security Act as described at 42 U.S.C 
673 (b). 

(3) Qualified pregnant women as defined at 
42 U.S.C. 1396d(n)(l). 

(4) Qualified children as defined at 42 
U.S.C. 1396d(n)(2). 

(5) Pregnant women, during a 60 day period 
following termination of the pregnancy, 
for pregnancy related and post partum 
services if they applied for Medicaid 
prior to termination of the pregnancy and 
were eligible on the date pregnancy is 
terminated. 

(6) Children, born to a woman who was 
eligible for and receiving Medicaid on 
the date of the child's birth, for up to one 
year from the date of birth; as described 
at 42 U.S.C. 1396a(e)(4). 

(7) Aged, blind or di s abled individual s who 
meet financial eligibility criteria more 
restrictive than those of the SSI program 
Individuals receiving SSI under Title XVI 
of the Social Security Act . 

(8) Individuals who meet the requirements 
under 42 U.S.C. 1382h(a) or (b)(1). 

(9) Blind or disabled individuals who were 
eligible in December 1973 as blind or 
disabled and who for each consecutive 
month since December 1973 continue to 
meet December 1973 eligibility criteria. 

(10) Individuals who were eligible in 
December 1973 as aged, or blind, or 
disabled with an essential spouse and 
who, for each consecutive month since 
December 1973, continue to live with the 
essentia] spouse and meet December 1973 



eligibility criteria. 

(11) Individuals who in December 1973 were 
eligible as the essential spouse of an 
aged, or blind, or disabled individual and 
who for each consecutive month since 
December 1973, have continued to live 
with that individual who has met 
December 1973 eligibility criteria. 

(12) Qualified Medicare Beneficiaries 
described at 42 U.S.C. 1396d(p). 

(13) Pregnant women whose countable income 
does not exceed the percent of the 
income official poverty line, established 
at 42 U.S.C. 1396a(l)(2), for pregnancy 
related services including labor and 
delivery. 

(14) Children born after September 30, 1983 
and who are under age 19 who are 
described at 42 U.S.C. 1396a(l). 

(15) Qualified Disabled and Working 
Individuals described at 42 U.S.C. 
1396d(s). 

(16) Individuals as described at 42 U.S.C. 
1396a(a)(10)(E)(iii). 

(17) Individuals who would continue to be 
eligible for SSI except for specific Title 
II benefits or cost-of-living adjustments 
as described at 42 U.S.C. 1383c. 

Authority G.S. 108A-54; 42 U.S.C. 1396a (a)(10); 
42 U.S.C. 1396a(e)(4); 42 U.S.C. 1396a(f); 42 
C.F.R. 435.110; 42 C.F.R. 435.112; 42 C.F.R. 
435.113; 42 CF.R. 435.114; 42 CF.R. 435.115; 
42 CF.R. 435.116; 42 CF.R. 435.117; 42 CF.R. 
435.118; 42 CF.R. 435.121; 42 CF.R. 435.131; 
42 CF.R. 435.132; 42 CF.R. 435.133. 

.0102 OPTIONAL 

The following optional groups of individuals 
described by 42 U.S.C. 1396a(a)(10)(A)(ii) and 42 
U.S.C. 1396a(a)(10)(C) shall be eligible for 
Medicaid: 

(1) Children: 

(a) Children under age one whose family 
income is more than the amount 
established under Paragraph Item (14), 
Rule .0101 of this Section and not more 
than a percent of the federal poverty 
level established by the General 
Assembly; 

(b) Children under age 21 who meet the 
eligibility requirements of this 
Subchapter; - 

(c) Qualified children under age 19 as 
described in Item (4), Rule .0101 of 



966 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



this Section, who were born on or 
before September 30. 1983. and whose 
income is not more than 100% of the 
federal poverty level; 
(d) Adopted children under age 1_8 with 
special needs, as described at 42 
U.S.C. 1396a(a)(10)(AKii)(VIin. 

(2) Individuals receiving optional state 
supplemental payment. 

(3) Caretaker relatives of eligible dependent 
children. 

(4) Pregnant women: 

(a) Whose countable income is more than 
the amount established under Paragraph 
Item (13), Rule .0101 of this Section 
and not more than a percent of the 
federal poverty level established by the 
General Assembly, or 

(b) Who, if their countable income exceeds 
the percent of the federal poverty level, 
established in Subparagraph Sub-item 
(4)(a) of this Rule, meet the eligibility 
criteria for medically needy set forth in 
this Subchapter. 

Authority G.S. 108A-54; 42 U.S.C. 
1396(a)(10)(A)(U); 42 U. S. C. 1396a(a)(10)(C); 42 
C.F.R. 435.210; 42 C.F.R. 435.222; 42 C.F.R. 
435.230; 42 C.F.R. 435.301; 42 C.F.R. 435.308; 
42 C.F.R. 435.322; 42 C.F.R. 435.330; S.L. 
1983, c. 1034, s. 62.2; S.L. 1987, c. 738, s. 69 
and 70; S.L. 1989, c. 752, s. 133. 

SECTION .0200 - APPLICATION 
PROCESS 

.0201 ACCEPTANCE OF APPLICATION 

(a) A client shall be allowed to apply without 
delay. Without delay is the same day the client 
appears at the county department of social services 
expressing a financial or medical need. 

(b) Except for individuals who are requesting 
Medicaid as Aged. Blind or Disabled and who are 
potentially eligible for SSI for whom the Social 
Security Administration determines Medicaid 
eligibility based on eligibility for SSI, the The 
county department of social services shall not act 
to discourage any individual from applying for 
Medicaid. It shall be considered discouragement 
if any employee of the county department of social 
services: 

(1) requires or suggests the individual wait 
to apply until he applies for other 
benefits or until an application for other 
benefits has been approved or denied; 



(2) 



(3) 



or 

incorrectly states or suggests the 

individual is not eligible for Medicaid; 



gives incorrect or incomplete 
information about Medicaid programs; 
or 

(4) requires the individual provide or 
obtain any information needed to 
establish eligibility prior to signing an 
application; or 

(5) any other fact which proves to the 
satisfaction of the county agency or a 
hearing officer that the client was 
discouraged from applying. 

(c) The client shall be informed verbally and in 
writing, that: 

(1) he can apply without delay. 

(2) a decision shall be made concerning his 
eligibility within 45 calendar days from 
the date of application for Medicaid, 
except for M-AD. For M-AD the 
application processing standard shall be 
60 calendar days from the date of 
application for applications which do 
not require a disability determination, 
and 90 calendar days for applications 
which require a disability 
determination; or 

(3) he shall receive a written decision 
concerning his eligibility. 

(d) The client shall apply in his county of 
residence. 

(e) The date of the application shall be the date 
the client or his representative signs the state 
prescribed application form under penalty of 
perjury. 

(f) If an individual requests assistance by mail, 
the letter shall be considered a request for 
information. Within three workdays following 
receipt of the request, the county agency shall mail 
follow-up information to the individual. The 
county agency shall advise the individual to come 
to the agency to apply and be interviewed, or if he 
is unable to come in person, to contact the agency 
so other arrangements can be made to take his 
application. 

(g) If an individual requests assistance by 
telephone, he shall be advised to come to the 
county agency to sign an application and be 
interviewed; or, if he is unable to come to the 
agency in person other arrangements shall be made 
to take his application. 

(h) An individual or his representative must 
request a determination for retroactive SSI 



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October 3, 1994 



967 



PROPOSED RULES 



Medicaid no later than 60 days from the date of 
the SSI Medicaid disposition notice or 90 days if 
good cause is established. Good cause exists 
when: 



in 

12} 
13} 



I4J 



15} 



the applicant does not receive the SSI 

Medicaid notice; 

the applicant or his representative dies; 

the applicant is incapacitated, 

incompetent, or unconscious and there 

is no representative acting on his 

behalf; 

the applicant or spouse, child, or parent 

of applicant js hospitalized of an 

extended period of time; 

the a pplicant's representative fails to 

meet the required time frame. 



Authority G.S. 108A-54; 42 C.F.R. 435.906; 42 
C.F.R. 435.907; 42 C.F.R. 435.911; Alexander v. 
Flaherty, U.S.D.C, W.D.N.C, File No. 
C-C-74-183, Consent Order filed 15 December 
1989; Alexander V. Flaherty Consent Order filed 
February 14, 1992. 

.0204 EFFECTIVE DATE OF ASSISTANCE 

(a) Medicaid coverage shall be effective as 
follows: 

(1) The month of application, or for SSI 
recipients, the month application for 
SSI ; or 

(2) As much as three months prior to the 
month of application when the client 
received medical services covered by 
the program and was eligible during the 
month or months of medical need; or 

(3) If the client applies prior to meeting a 
non-financial requirement, Medicaid 
shall begin no earlier than the calendar 
month in which all non-financial 
requirements are met; or 

(4) For pregnancy related services under 
M-PW, the month of application or as 
much as three months prior to the 
month of application in which all 
eligibility requirements are met in the 
month or months. 

(b) Assistance shall be authorized beginning on 
the first day of the month except when: 

(1) The client's income exceeds the income 
level and he must spenddown the excess 
income for medical care. The client 
shall be authorized on the day his 
incurred medical care costs equal the 
amount of the excess income. 

(2) The assets of AFDC related cases, or 



cases protected by grandfather 

provisions, and all Medically Needy 

cases are reduced to the assets limit 

during the month. The client shall be 

authorized on the day the assets are 

reduced, or incurred medical care costs 

equal the amount of the excess income, 

whichever occurs later. 

(c) Medicaid coverage shall end on the last day 

of the last month of eligibility except for those 

individuals eligible for emergency conditions only 

as described in Rule .0302 of this Subchapter. 

The last month of eligibility shall be: 

(1) The month in which timely notice of 
termination expires; or 

(2) The month in which adequate notice of 
termination expires; or, 

(3) The last month of the certification 
period. 

Authority G.S. 108A-54; 42 C.F.R. 435.914; 42 
C.F.R. 435.919. 

.0207 REFERRALS 

For all Medicaid applicants and recipients for 
whom the county department of social services 
determines eligibility, the The Income Maintenance 
Caseworker shall explain and make referrals for: 

(1) Healthy Children and Teen Program; 

(2) Family planning services; 

(3) Food stamps; 

(4) Governmental benefits including RSDI, 
SSI, VA; 

(5) Vocational rehabilitation services; 

(6) Protective services if the client has reason 
to believe a child receiving assistance has 
been neglected, abused, or exploited; 

(7) Women, Infants and Children Program 
(WIC). 

Authority G.S. 108A-54; 42 C.F.R. 441.56; 42 
U.S.C. 1396a(a). 

SECTION .0300 - CONDITIONS 
FOR ELIGD3DLITY 

.0311 RESERVE 

North Carolina has contracted with the Social 
Security Administration under Section 1 634 of the 
Social Security Act to provide Medicaid to all SSI 
recipients. Resource eligibility for individuals 
under any Aged, Blind, and Disabled coverage 
group is determined based on standards and 
methodologies in Title XVI of the Social Security 
Act except as specified in Items (4) and (5) of this 



968 



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PROPOSED RULES 



Rule, elected the option under Section 1902(f) of 

fee Social Security Act to limit Medicaid eligibility 

for the aged, blind or the disabled to individuals 

who meet eligibility requirements more restrictive 

than those under Supplemental Security Income. 

Applicants for and recipients of Medicaid shall use 

their own resources to meet their needs for living 

costs and medical care to the extent that such 

resources can be made available. Certain 

resources shall be protected to meet specific needs 

such as burial and transportation and a limited 

amount of resources shall be protected for 

emergencies. 

(1) The value of resources currently available 

to any budget unit member shall be 

considered in determining financial 

eligibility. A resource shall be 

considered available when it is actually 

available and when the budget unit 

member has a legal interest in the 

resource and he, or someone acting in his 

behalf, can take any necessary action to 

make it available. 

(a) Resources shall be excluded in 
determining financial eligibility when 
the budget unit member having a legal 
interest in the resources is incompetent 
unless: 

(i) A guardian of the estate, a general 
guardian or an interim guardian has 
been lawfully appointed and is able to 
act on behalf of his ward in North 
Carolina and in any state in which 
such resources are located; or 

(ii) A durable power of attorney, valid in 
North Carolina and in any state in 
which such resource is located, has 
been granted to a person who is 
authorized and able to exercise such 
power. 

(b) When there is a guardian, an interim 
guardian, or a person holding a valid, 
durable power of attorney for a budget 
unit member, but such person is unable, 
fails, or refuses to act promptly to 
make the resources actually available to 
meet the needs of the budget unit 
member, a referral shall be made to the 
county department of social services of 
a determination of whether the guardian 
or attorney in fact is acting in the best 
interests of the member and if not, 
contact the clerk of court for 
intervention. The resources shall be 
excluded in determining financial 



eligibility pending action by the clerk of 
court. 

(c) When a Medicaid application is filed on 
behalf of an individual who: 

(i) is alleged to be mentally incompetent, 
(ii) has or may have a legal interest in a 
resource that affects the individual's 
eligibility, and 
(iii) does not have a representative with 
legal authority to use or dispose of the 
individual's resources, the individual's 
representative or family member shall 
be instructed to file within 30 
calendar days a judicial proceeding to 
declare the individual incompetent and 
appoint a guardian. If the 

representative or family member 
either fails to file such a proceeding 
within 30 calendar days or fails to 
timely conclude the proceeding, a 
referral shall be made to the services 
unit of the county department of 
social services for guardianship 
services. If the allegation of 

incompetence is supported by a 
physician's certification or other 
competent evidence from sources 
including but not limited to 
physicians, nurses, social workers, 
psychologists, relatives, friends or 
others with knowledge of the 
condition of the individual, the 
resources shall be excluded except as 
provided in Sub-items (l)(d) or (e) of 
this Rule. 

(d) The budget unit member's resources 
shall be counted in determining his 
eligibility for Medicaid beginning the 
first day of the month following the 
month a guardian of the estate, general 
guardian or interim guardian is 
appointed, provided that after the 
appointment, property which cannot be 
disposed of or used except by order of 
the court shall continue to be excluded 
until completion of the applicable 
procedures for disposition specified in 
Chapters 1 or 35A of the North 
Carolina General Statutes. 

(e) When the court rules that the budget 
unit member is competent or no ruling 
is made because of the death or 
recovery of the member, his resources 
shall be counted except for periods of 
time for which it can be established by 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



969 



PROPOSED RULES 



competent evidence from sources 
including but not limited to physicians, 
nurses, social workers, psychologists, 
relatives, friends or others with 
knowledge of the condition of the 
individual that the member was in fact 
incompetent. Any such showing of 
incompetence is subject to rebuttal by 
competent evidence as specified herein 
and in Sub-item (l)(c) of this Rule. 

(2) The limitation of resources held for 
reserve for the budget unit shall be as 
follows: 

(a) For Family and Children's related 
categorically needy cases, one thousand 
dollars ($1,000) per budget unit; 

(b) For aged, blind or disabled coses and 
Family and Children's related medically 
needy cases, one thousand five hundred 
dollars ($1,500) for a budget unit of 
one person, two thousand two hundred 
fifty dollars ($2,250) for a budget unit 
of two persons and increases of one 
hundred dollars ($100.00) for each 
additional person in the budget unit 
over two, not to exceed a total of three 
thousand, fifty dollars ($3,050>r ; 

(c) For aged, blind, and disabled cases, 
two thousand dollars ($2000) for a 
budget unit of one and three thousand 
dollars ($3000) for a budget unit of 
two. 

(3) If the value of countable resources of the 
budget unit exceeds the reserve allowance 
for the unit, the case shall be ineligible: 

(a) For Family and Children's related cases 
and aged, blind or disabled cases 
protected by grandfathered provisions, 
and medically needy cases not protected 
by grandfathered provision, eligibility 
shall begin on the day countable 
resources are reduced to allowable 
limits or excess income is spent down, 
whichever occurs later; 

(b) For categorically needy aged, blind or 
disabled cases not protected by 
grandfathered provisions, eligibility 
shall begin no earlier than the month 
countable resources are reduced to 
allowable limits as of the first moment 
of the first day of the month. 

(4) Resources counted in the determination 
of financial eligibility for categorically 
needy and medically needy aid to the 
aged, blind, or disabled cases protected 



by grandfathered provi s ions ore aged, 
blind and disabled cases is based on 
resource standards and methodologies in 
Title XVI of the Social Security Act 
except for the following methodologies : 

(a) The value of personal effects and 
household goods are not counted. 

(b) Value of tenancy in common interest in 
real property is not counted. 

(c) Value of life estate interest in real 
property is not counted. 

(a) Cash on hand; 



e*- 



m- 



The — current — balance — ef- 



oaving s 

accounts, except savings of a student 
saving — bis — earning s — fef — educational 
purposes; 

(e) The — current — balance — ef- — chocking 

accounts; 

(d) Cash value of life in s urance policies 

when the total face value of all policies 
that accrue cash — value exceeds one 
thou s and five hundred dollars ($1,500); 

fe) Equity — ifl — motor — vehicles, — including 

motor — homes, — determin ed — te — be 
non essential according to Rule .0 4 03 
of this Subchapter; 

{f) Equity — m — excess — ef- — eee — thousand 

dollar s — ($1,000) — m — motor — vehicles, 
including motor homes, determined -te 
be e ss ential according to Rule .0 4 03 of 
this Subchapter; 

{g) Stocks, — bonds, — mutual — fend — s hares, 

certificates of deposit and other liquid 

asset s ; 

Negotiable and s alable promi s sory note s 

and loans; 

Tru s t fund s ; 



m — 

tfi The portion of lump sum payments 

remaining after the month of receipt; 

fk-) Individual Retirement Accounts or other 

retirement accounts or plan s ; 

{t) Equity in real property not used as the 

homesite or not producing an income; 

(») Value of burial s paces other than spaces 

designated for the eligible individual, 
the eligible individual's spouse, and the 
eligible individual's immediate family 
which includes the eligible individual's 
minor and adult children, stepchildren, 
and adopted children, brothers, sister s , 
parents, — adoptiv e — parents, — and — the 
s pou s es of tho s e person s ; 

{e) Salable remainder interest in life estate 

property not used as the budget unit' s 
homesite; 



970 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



{e) Patient — accounts — in — leeg — term — ewe 

facilities. 
(5) Resources counted in the determination 
of financial eligibility for aid — to 
categorically — needy — aged, — blind — er 

disabled cases set protected by 

grandfathered provi s ions are medically 
needy aged, blind and disabled cases is 
based on resource standards and 
methodologies in Title XVI of the Act 
except for the following methodologies : 

(a) The value of personal effects and 
household goods are not counted. 

(b) Personal property is not a countable 
resource if it: 

(i) is used in a trade or a business; or 
(ii) is used to produce goods and services 

for personal use; or 
(iii) produces a net annual income. 

(c) Real property not exempted under 
homesite rules is not a countable 
resource if" iti 

(i) is used in a trade or business; or 
(ii) is used to produce goods and services 

for personal use; or 
(iii) is non-business income producing 
property that produces net annual 
income after operational expenses of 
at least six percent of equity value per 
methodologies under Title XVI of the 
Social Security Act. 

(d) Value of tenancy in common interest in 
real property is not counted. 

(e) Value of life estate interest in real 
property is not counted. 

(f) Individuals with resources in excess of 
the resource limit at the first moment of 
the month may become eligible at the 
point that resources are reduced to the 
allowable limit- 
Cash on hand; 



{b) The balance of savings accounts, except 

savings of a student saving his earnings 
for educational purposes; 

fe) The balance of s avings account, except 

for aged, blind or disabled individual s 
who have a plan for achieving self 
support (PASS) that is approved by the 
Social Security Administration; 

fti) The balance of checking accounts less 

the current monthly income which had 
been deposited to meet the budget unit's 
needs when reserve was verified or 

lump s um income — from 

self employment — deposited — to — pay 



«- 






(e)- 



&)- 



annual expenses; 

Cash value of life insurance policies 
when the total face value of all policies 
that accrue ca s h — value exceeds — eee 
thousand five hundred dollars ($1,500); 
Trust funds; 



Stocks, — bonds, — mutual — fend — shares, 



certificates of deposit and other liquid 

assets; 
{b) Negotiable and salable promissory notes 

and loans; 
ft) Revocable burial contracts and burial 

trusts; 
ft) The portion of lump sum payments 

remaining after the month of receipt; 
(k) Individual Retirement Accounts or other 

retirement accounts or plans; 
ft) Patient — accounts — m — long — teraa — eafe 

facilities; 
fts) Equity in motor vehicles dctermincd -te 



be non essential under Rule .0 4 03 of 
thi s Subchapter or, if no motor vehicle 
i s excluded as essential, any equity in 
exce ss of four thou s and five hundred 
dollars ($ 4 ,500) in a motor vehicle; 

(e) Equity in real and/or personal property 

when — the combined — equities — is — six- 

thousand dollars ($6,000) or less and 

the property docs not yield a net annual 

income of at least six percent of the 

equities; 

Equity in real and/or personal property 



when the combined equities exceed six 

thou s and dollars ($6,000); 

Equity in personal property, subject to 

(5) (m) and (n) of thi s Rule, i s limited 

tor 

ft) Mobile homes not used as homesite, 

(«) — Boats, boat trailers and boat motors, 
Campers, 



ft»)- 

ftv) — Farm and bu s ines s equipment; 

fq) Equity in real property, subject to (5) 

(m) and (n) of this Rule, is limited to: 

ft) Value of burial — space s — other than 

spaces — designated — fef — the — eligible 
individual, — the — eligible — individual's 
spouse, and the eligible individual' s 
immediate family which includes the 
eligible individual's minor and adult 
children, — stepchildren, — and adopted 
children, — brothers, — si s ters, — parents, 
adoptive parents, and the spouses of 
those persons; 

ftt) — Fee simple interest; 

ftii) — Salable remainder interest; 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



971 



PROPOSED RULES 



ftv) — Tenancy — by — the — entireties — interest 

{€) Resources counted in the determination 

of financial eligibility for aid to medically 
needy aged, blind or disabled cases not 
protected — by — grandfathered — provisions 

Cash on hand; 



{b) The balance of savings accounts, except 

savings of a student saving his earnings 
for educational purposes; 

(e) The balance of savings accounts, except 

for aged, blind or disabled individuals 
who have a plan for achieving self 
support (PASS) that is approved by the 
Social Security Administration; 
The balance of checking accounts less 



<#- 






m- 



<&- 



the current monthly income which had 
been depo s ited to meet the budget unit' s 
needs — when — re s erv e — was — verified — Of 
1 



u m p s um 

self employment 
annual expenses; 



income from 

deposited — to — pay 



{e) Ca s h value of life insurance policies 

when the total face value of all policies 
that — accrue — eash — value — exceeds — &ne 
thousand dollar s ($1,000); 
Trust funds; 



Stocks, — bonds, — mutual — fund — shares, 
certificates of deposit and other liquid 

assets; 



Negotiable and salable promissory notes 
contracts and burial 



■t cgonaDic 
and loan s ; 
Revocable burial 



tru s ts; 

Th e portion o f lump sum payments 



remaining after the month of receipt; 

Individual Retirement Accounts or other 

retirement accounts or plan s ; 

Patient — accounts — ifl — k>ftg — teffti — eafe 

facilities; 

Equity in motor vehicles determined to 



be non essential under Rule .0 4 03 of 
this Subchapter or, if no motor vehicle 
i s excluded a s e s sential, any equity in 
exces s of four thou s and five hundred 
dollars ($ 4 ,500) in a motor vehicle; 

(ft) Equity in real property and personal 

property that docs not produce a net 
annual income; 

Equity in personal property, subject to 
(6)(m) of thi s Rule, is limited to: 



<&- 



Mobile homes not used as homesitc. 



fft) — Boat s , boat trailer s and boat motor s , 
(iw) — Camper s , 



{iv} — Farm and business equipment; 

{&) Equity — is — feel — property, — subject — te 

(6)(m) of this Rule, i s limited to interest 
in real estate other than that used as the 
budget unit' s homesitc and includes: 

£i) Fee simple interest, 

fit) — Tenancy — by — the — entireties — interest 

only, 
$m) — Salable remainder interest, 
{W) — Value — of burial — spaces — other than 
spaces — designated — fef — the — e ligible 
individual, — the eligible — individual's 
spouse, and the eligible individual's 
immediate family which includes the 
eligible individual's minor and adult 
children, — stepchildren, — and adopted 
children, — brother s , — sister s , — parents, 
adoptive parents, and the spouses of 
those persons. 
(6) f?) Resources counted in the 
determination of financial eligibility for 
categorically needy Family and 
Children's related cases are: 
Cash on hand; 

The balance of savings accounts, 
including savings of a student saving 
his earnings for school expenses; 
The balance of checking accounts less 
the current monthly income which had 
been deposited to meet the budget unit's 
monthly needs when reserve was 
verified; 

(d) The portion of lump sum payments 
remaining after the month of receipt; 

(e) Cash value of life insurance policies 
owned by the budget unit; 

(f) Revocable trust funds; 

(g) Stocks, bonds, mutual fund shares, 
certificates of deposit and other liquid 
assets; 

( h ) Negotiable and salable promissory notes 

and loans; 
(i) Revocable pre-paid burial contracts; 
(j) Patient accounts in long term care 

facilities; 
(k) Individual Retirement Accounts or other 

retirement accounts or plans; 
(1) Equity in non-essential personal 

property limited to: 
(i) Mobile homes not used as home, 
(ii) Boats, boat trailers and boat motors, 
(iii) Campers, 

(iv) Farm and business equipment; 
(v) Equity in excess of one thousand five 
hundred dollars ($1 ,500) in one motor 



(a) 
(b) 



(c) 



972 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



vehicle determined to be essential 
under Rule .0403 of this Subchapter; 
(vi) Equity in motor vehicles determined 
to be non-essential under Rule .0403 
of this Subchapter; 
(m) Equity in real property is limited to 
interest in real estate other than that 
used as the budget unit's homesite and 
is limited to: 
(i) Fee simple interest, 
(ii) Tenancy by the entireties interest 

only, 
(iii) Salable remainder interest, 
(iv) Value of burial plots. 
(7) f&) Resources counted in the 
determination of financial eligibility for 
medically needy Family and Children's 
related cases are: 

(a) Cash on hand; 

(b) The balance of savings accounts, 
including savings of a student saving 
his earnings for school expenses; 

(c) The balance of checking accounts less 
the currently monthly income which 
had been deposited to meet the budget 
unit's monthly needs when reserve was 
verified or lump sum income from 
self-employment deposited to pay 
annual expenses; 

(d) Cash value of life insurance policies 
when the total face value of all policies 
that accrue cash value exceeds one 
thousand five hundred dollars ($1,500); 

(e) Trust funds; 

(f) Stocks, bonds, mutual fund shares, 
certificates of deposit and other liquid 
assets; 

(g) Negotiable and salable promissory notes 
and loans; 

(h) Revocable prepaid burial contracts; 
(i) Patient accounts in long term care 

facilities; 
(j) Individual Retirement Accounts or other 

retirement accounts or plans; 
(k) Equity in non-essential, non-income 
producing personal property limited to: 
(i) Mobile home not used as home, 
(ii) Boats, boat trailers and boat motors, 
(iii) Campers, 

(iv) Farm and business equipment, 

(v) Equity in motor vehicles determined 

to be non-essential under Rule .0403 

of this Subchapter; 

(1) Equity in real property is limited to 

interest in real estate other than that 



used as the budget unit's homesite and 

is limited to: 
(i) Fee simple interest, 
(ii) Tenancy by the entireties interest 

only, 
(iii) Salable remainder interest, 
(iv) Value of burial plots. 

Authority G.S. 108A-54; 108A-55; 108A-58; 42 
U.S.C. 703, 704 1396; 42 C.ER. 435.121; 42 
C.ER. 435.210; 42 C.ER. 435.711; 42 C.ER. 
435.712; 42 C.F.R. 435.734; 42 C.ER. 435.823; 
42 C.F.R. 435.840; 42 C.ER. 435.841; 42 C.ER. 
435-845; 42 C.F.R. 445.850; 42 C.F.R. 435.851; 
45 C.F.R. 233.20; 45 C.F.R. 233.51. 

.0313 INCOME 

(a) For family and children's cases, income 
Income from the following sources shall be 
counted in the calculation of financial eligibility: 
(1) Unearned. 

(A) RSDI, 

(B) Veteran's Administration, 

(C) Railroad Retirement, 

(D) Pensions or retirement benefits, 

(E) Workmen's Compensation, 

(F) Unemployment Compensation, 

(G) Support Payments, 
(H) Contributions, 

(I) Dividends or interest from stocks, 
bonds, and other investments, 

(J) Trust fund income, 

(K) Private disability or employment 
compensation, 

(L) That portion of educational loans, 
grants, and scholarships for mainte- 
nance, 

(M) Work release, 

(N) Lump sum payments, 

(O) Military allotments, 

(P) Brown Lung Benefits, 

(Q) Black Lung Benefits, 

(R) Trade Adjustment benefits, 

(S) SSI when the client is in long term 
care, 

(T) VA Aid and Attendance when the 
client is in long term care, 

(U) Foster Care Board payments in excess 
of state maximum rates for M-AF 
clients who serve as foster parents, 

(V) Income allocated from an 
institutionalized spouse to the client 
who is the community spouse as 
stated in 42 U.S.C. 1396r-5(d), 

(W) Income allowed from an 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



973 



PROPOSED RULES 



(2) 



salaries, and 



including 



institutionalized spouse to the client 
who is a dependent family member as 
stated in 42 U.S.C. 1396r-5(d), 
(X) Sheltered Workshop Income, 
(Y) Loans if repayment of a loan and not 

counted in reserve, 
(Z) Income deemed to Family and 
Children's clients. 
Earned Income. 

(A) Income from wages, 
commissions, 

(B) Farm Income, 

(C) Small business income 
self-employment, 

(D) Rental income, 

(E) Income from roomers and boarders, 

(F) Earned income of a child client who 
is a part-time student and a full-time 
employee, 

(G) Supplemental payments in excess of 
state maximum rates for Foster Care 
Board payments paid by the county to 
Family and Children's clients who 
serve as foster parents, 

(44) — Earned — income tax — credits — for the 

Aged, Blind or Di s abled only, 
(H) (4) VA Aid and Attendance paid to a 
budget unit member who provides the 
aid and attendance. 
(3) Additional sources of income not listed 
in Subparagraphs £a}(l) or (2) of this 
Rule will be considered available unless 
specifically excluded by Paragraph (b) 
of this Rule, or by regulation or law. 
(b) For family and children's cases, income 
Incom e from the following sources shall not be 
counted in the calculation of financial eligibility: 

(1) Earned income of a 
part-time student but 
employee; 

(2) Earned income of a 
full-time student; 

(3) Incentive payments and training 
allowances made to WIN training 
participants; 

(4) Payments for supportive services or 
reimbursement of out-of-pocket 
expenses made to volunteers serving as 
VISTA volunteers, foster grandparents, 
senior health aides, senior companions. 
Service Corps of Retired Executives, 
Active Corps of Executives, Retired 
Senior Volunteer Programs, Action 
Cooperative Volunteer Program, 
University Year for Action Program, 



child who is a 
is not a full-time 

child who is a 



(6) 



ill 

m 



and other programs under Titles I, II, 
and III of Public Law 93-1 13; 

(5) Foster Care Board payments equal to or 
below the state maximum rates for 
Family and Children's clients who 
serve as foster parents; 

(6) Earning s of M AABD clicnto who arc 

participating « ADAP (Adult 

Developmental Activity Program) 

training — programs — fef — a — specified 
period; 

(?) Income that is unpredictable, i.e., 
unplanned and arising only from time to 
time. Examples include occasional 
yard work, sporadic babysitting, etc.; 
(&) Relocation payments; 
(9) Value of the coupon allotment under 
the Food Stamp Program; 
(W) Food (vegetables, dairy products, 
and meat) grown by or given to a 
member of the household. If home 
grown produce is sold, count as earned 
income; 

(44) Benefits received from the 
Nutrition Program for the Elderly; 
(4-2) Food Assistance under the Child 
Nutrition Act and National School 
Lunch Act; 

(4-3) Assistance provided in cash or in 
kind under any governmental, civic, or 
charitable organization whose purpose 
is to provide social services or 
vocational rehabilitation. This includes 
VR. incentive payments for training, 
education and allowance for 
dependents, grants for tuition, chore 
services under Title XX of the Social 
Security Act, VA aid and attendance or 
aid to the home bound if the individual 
is in a private living arrangement; 
(44) Loans or grants such as the GI 
Bill, civic, honorary and fraternal club 
scholarships, loans, or scholarships 
granted from private donations to the 
college, etc., except for any portion 
used or designated for maintenance; 
(4-5) Loans, grants, or scholarships to 
undergraduates for educational purposes 
made or insured under any program 
administered by the U.S. Department of 
Education; 

(46) Benefits received under Title VII 
of the Older Americans Act of 1965; 
(43) Payments received under the 
Experimental Housing Allowance 



(10) 

an 

(12) 



(13) 



(14) 



(15) 
(16) 



974 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



Program (EHAP); 

(17) {t8) In-kind shelter and utility 
contributions paid directly to the 
supplier. For Family and Children's 
cases, shelter, utilities, or household 
furnishings made available to the client 
at no cost; 

(18) {W) Food/clothing contributions in 
Family and Children's cases (except for 
food allowance for persons temporarily 
absent in medical facilities up to 12 
months); 

(19) {20) Income of a child under 21 in the 
budget unit who is participating in 
JTPA and is receiving as a child; 

(20) {24) Housing Improvement Grants 
approved by the N.C. Commission of 
Indian Affairs or funds distributed per 
capital or held in trust for Indian tribe 
members under P.L. 92-254, PL. 
93-134 or P.L. 94-540; 

(21) {22) Payments to Indian tribe members 
as permitted under P.L. 94-114; 

(22) {23) Payments made by Medicare to a 
home renal dialysis patient as medical 
benefits; 

(23) {24) SSI except for individuals in long 
term care; 

(24) {25) HUD Section 8 benefits when paid 
directly to the supplier or jointly to the 
supplier and client; 

(25) {26) Benefits received by a client who 
is a representative payee for another 
individual who is incompetent or 
incapable of handling his affairs. Such 
benefits must be accounted for separate 
from the payee's own income and 
resources; 

(26) {27) Special one time payments such as 
energy, weatherization assistance, or 
disaster assistance that is not designated 
as medical; 

(27) {28) The value of the U.S. Department 
of Agriculture donated foods (surplus 
commodities); 

(28) {29) Payments under the Alaska Native 
Claims Settlement Act, Public Law 
92-203; 

(29) {30) Any payment received under Title 
II of the Uniform Relocation Assistance 
and Real Property Acquisition Policies 
Act of 1970; 

(30) {34) HUD Community Development 
Block Grant funds received to finance 
the renovation of a privately owned 



residence; 
(31) {33) Reimbursement for transportation 
expenses incurred as a result of 
participation in the Community Work 
Experience Program or for use of 
client's own vehicle to obtain medical 
care or treatment; 
{35) Adoption assistance; 
{34) Incentive payments made to a 
client participating in a vocational 
rehabilitation program; 
{35) Title XX funds received to pay for 
services rendered by another individual 
or agency; 

{36) Any amount received as a refund 
of taxes paid. 



(32) 
(33) 



(34) 
(35) 



Any Co s t of Living Allowance (COLA) 
increase — in the RSDI benefit for a 
disabled widow or widower resulting 
from — the — t983 — Actuarial — Reduction 
For mula (ARF) which caused the loss 
of SSI effective January, 19 84 , for an 
M AA, M AB, or M AD client: 
{A) — Who received a di s abled widow or 

widower' s benefit a-ftd SS4 

simultaneou s ly in 19 8 3 as identified 
by the Social Security Administration, 



{€)- 



Bum 

-Whe- 



-+39t — SSI — becau s e — ef- — the 



elimination of the ARF, and 
Who is not now eligible for SSI, and 
Who was between 50 and 59 years of 
age in 19 8 3, and 
{£) — Who applied for Medicaid no later 

than June 30, 19 88 , and 
{F) — Who — is classified — as — Categorically 
Needy; 

{38) Any Co s t of Living Allowance (COLA) 

increase in the RSDI benefit for a client 

or hi s financially responsible spouse or 

parcnt(s), who: 

{A) — I s cla ss ified as Categorically Needy 

for the MAA, M AB, or MAD 

program s , and 

{B) — Lost SSI or State/County Special 

As s istance (S/C S/ 

ufiu 

{€) — Would currently be 



Assistance (S/C SA) for any reason, 

UuU 



eligible for SSI or 
S/C SA if all COLA's since he was 
last eligible for and received RSDI 
and SSI or S/C SA concurrently were 
disregarded; 



{39) The RSDI benefit for a client who: 



{A) — Is a disabled widow or widower or 
surviving divorced s pou s e, and 



NORTH CAROLINA REGISTER 



October 3, 1994 



975 



PROPOSED RULES 



fB) — Received SSI for the moDth prior to 
the month he began receiving RSDI, 

nuG 

{€) — Would continue to be eligible for SSI 
if the RSDI benefit were not counted, 
onQ 
(D) — Is not entitled to a Medicare Part A. 

(40) Earning s of aged, blind and disabled 

individuals — whe — have — a — pten — fef 
achieving s elf s upport (PASS) that is 
approved — by — the — Social — Security 
Admini s tration. 

(c) For aged, blind, and disabled cases, income 
counted in the determination of financial eligibility 
is based on standards and methodologies in Title 
XVI of the Social Security Act. 

(d) For aged, blind, and disabled cases, income 
from the following sources shall not be counted: 

(1) Any Cost of Living Allowance (COLA - ) 
increase or receipt of RSDI benefit 
which resulted in the loss of SSI for 
those individuals described in Item (17) 
of Rule .0101 of this Subchapter. 

(2) Earnings for those individuals who have 
a plan for achieving self-support 
(PASS) that is approved by the Social 
Security Administration. 

(e e) Income levels for purposes of establishing 
eligibility are those amounts approved by the N.C. 
General Assembly and stated in the Appropriations 
Act for categorically needy and medically needy 
classifications, except for the following: 

(1) The income level shall be reduced by 
one-third when an aged, blind or 
disabled individual lives in the 
household of another person and does 
not pay his proportionate share of 
household expenses. The one-third 
reduction shall not apply to children 
under nineteen years of age who live in 
the home of their parents; 

(2) An individual living in a long term care 
facility or other medical institution shall 
be allowed as income level a deduction 
for personal needs described under Rule 
.0314 (Personal Needs Allowance) of 
this Subchapter^ - 

(3) The categorically needy income level 
for an aged, blind, and disabled 
individual or couple is the SSI 
individual or couple amount. This is 
the current Federal Benefit Rate (FBR) . 

Authority G.S. 108A-25(b); 108A-61; 42 C.F.R. 
435.135; 42 C.F.R. 435.731; 42 C.F.R. 435.732; 



42 C.F.R. 435.733; 42 C.F.R. 435.811; 42 C.F.R. 
435.812; 42 C.F.R. 435.831; 42 C.F.R. 435.832; 
42 C.F.R. 435.1007; 42 U.S.C. 1383c(b); 42 
U.S.C 1383c(d); 45 C.F.R. 233.20; P.L. 99-272; 
Section 12202; Alexander v. Flaherty Consent 
Order filed February 14, 1992. 

SECTION .0400 - BUDGETING 
PRINCIPALS 

.0402 FINANCIAL RESPONSIBILITY 
AND DEEMING 

The income and resources of financially 
responsible persons are deemed available to the 
applicant or recipient in the following situations: 

(1) For aged, blindj and disabled cases in a 
private living arrangement financial 
responsibility and deeming of income and 
resources is based on methodologies in 
Title XVI of the Social Security Act: 

(a) spouses when living together or 
temporarily absent; 

(b) parents for disabled or blind children 
under age 19 who are living in the 
household with them or temporarily 
absent. 

(2) For aged, blind a and disabled 
institutionalized individuals: 

(a) who have a spouse living in the 
community, oases in long term care, 
financial responsibility and deeming of 
income and resources is consistent with 
Section 1924 of the Social Security Act- 
exist for: 

(a) s pou s e to s pou s e only for the month of 

entry into a long term care facility; 

(b) parents for dependent children under 
age 19 in skilled nursing facilities, 
intermediate care facilities, intermediate 
care facilities for the mentally retarded, 
or hospitals whose care and treatment is 
not expected to exceed 12 months as 
certified by the patient's physician. 

(3) For AFDC related cases, except pregnant 
women described at 42 U.S.C. 1396a(l), 
financial responsibility exists for: 

(a) spouses when living together or one 
spouse is temporarily absent in long 
term care; 

(b) parents for dependent children under 
age 21 living in the home with them or 
temporarily absent; 

(c) parents for dependent children under 
age 21 in nursing facilities or 



976 



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PROPOSED RULES 



intermediate care facilities for the 
mentally retarded except when such 
care and treatment is expected to 
exceed 12 months as certified in writing 
by their attending physician, 
(d) parents for dependent children under 
age 21, in institutions for medical, 
surgical or inpatient psychiatric care, 
including inpatient treatment for 
substance abuse except when such care 
and treatment is expected to exceed 12 
months as certified in writing by their 
attending physician and approved by the 
Division of Medical Assistance. 

(4) For pregnant women described at 42 
U.S.C. 1396a(l) financial responsibility 
exists for: 

(a) The pregnant woman's spouse if living 
in the home or temporarily absent from 
the home; 

(b) The father of the unborn child if not 
married to the pregnant woman but 
living in the home and acknowledging 
paternity of the unborn child. 

(5) Parental financial responsibility for 
children in private living arrangements or 
long term care facilities for whom the 
county has legal custody or placement 
responsibility is based on court ordered 
support and voluntary contributions from 
the parents. 

Authority G.S. 108A-54; 143-127.1; S.L. 1983, c. 
761, s. 60(6); S.L. 1983, c. 1034; S.L. 1983, c. 
1116; 42 C.F.R. 435.602; 42 C.F.R. 435.712; 42 
C.F.R. 435.734; 42 C.F.R. 435.821; 42 C.F.R. 
435.823. 

.0403 RESERVE 

(a) The value of resources held by the client or 
by a financially responsible person shall be 
considered available to the client in determining 
countable reserve for the budget unit. 

(b) Jointly owned resources shall be counted as 
follows: 

(1) The value of resources owned jointly 
with a non-financially responsible 
person who is a recipient of another 
public assistance budget unit shall be 
divided equally between the budget 
units; 

(2) The value of liquid assets and personal 
property owned jointly with a 
non-financially responsible person who 
is not a client of another public 



(3) 



assistance budget unit shall be available 
to the budget unit member if he can 
dispose of the resource without the 
consent and participation of the other 
owner or the other owner consents to 
and, if necessary, participates in the 
disposal of the resource; 
The client's share of the value of real 
property owned jointly with a 
non-financially responsible person who 
is not a member of another public 
assistance budget unit shall be available 
to the budget unit member if he can 
dispose of his share of the resource 
without the consent and participation of 
the other owner or the other owner 
consents to and, if necessary, 
participates in the disposal of the 
resource. 

(c) The terms of a separation agreement, divorce 
decree, will, deed or other legally binding 
agreement or legally binding order shall take 
precedence over ownership of resources as stated 
in (a) and (b) of this Rule, except as provided in 
Paragraph {©) {n} of this Rule. 

(d) For all aged, blind, and disabled cases, the 
The reserve resource lining financial responsibility, 
and countable and non-countable assets are based 
on standards and methodology in Title XVI of the 
Social Security Act except as specified in Items (4) 
and (5) in Rule .0311 of this Subchapter, for the 
budget unit for aged, blind or disabled case s shall 
be determined as follows: 



W- 



^Fbe- 



-shaH 



m- 



reserve limit for two persons 
be allowed when spouses live together 
in a private living situation or when the 
couple share the same room in long 
term car et 
Allow the reserve limit for one 



person 

for the Community Alternative Program 
(CAP) client with a spouse at home and 
only — count — the — resources — that — are 
available — te — the — CAP — client — m 
determining hi s countable reserve; 

(3) The reserve limit for one person is 

allowed for the client who is in long 
term care and the s pouse remains in the 
home; 

(4) The reserve allowance for one person is 

allowed for the client who is in long 
term — eare — and — the — spouse — is — if* 
domiciliary care; 

{§} The reserve limit allowed for a blind or 

disabled minor child who lives with his 
parent or parents or i3 — temporarily 



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977 



PROPOSED RULES 



absent includes the child and the parent 
or parents with whom the child lives; 

(6) The reserve limit allowed for a blind or 

di s abled dependent child under age 19 
who is in long term care s hall include 
only the child if his care and treatment 
arc expected to exceed 12 months, as 
certified by the child's physician. 

(e) Countable resources for Family and 
Children's related cases will be determined as 
follows: 

(1) The resources of a spouse, who is not a 
stepparent, shall be counted in the 
budget unit's reserve allowance if the 
spouses live together or one spouse is 
temporarily absent in long term care 
and the spouse is not a member of 
another public assistance budget unit; 

(2) The resources of a client and a 
financially responsible parent or parents 
shall be counted in the budget unit's 
reserve limit if the parents live together 
or one parent is temporarily absent in 
long term care and the parent is not a 
member of another public assistance 
budget unit; 

(3) The resources of the parent or parents 
shall not be considered if a child under 
age 21 requires care and treatment in a 
medical institution and his physician 
certifies that the care and treatment are 
expected to exceed 12 months. 

(f) The homesite shall be excluded from 
countable resources for Family and Children's 
related cases as follows: 

(1) For all aged, blind or disabled cases 
and family and children's related cases, 
the The homesite is the client's 
principal place of residence, which 
includes the house and in the city the 
lot on which the house sits and all the 
buildings on the lot, or in a rural area 
the land on which the house sits, up to 
one acre, and all buildings on the acre, 
and, for all aged, blind, or disabled 
cases and medically needy family and 
children's related case s , the homesite 
also includes up to twelve thousand 
dollars ($12,000) tax value in real 
property contiguous to the principal 
place of residence, regardless of 
whether the principal place of residence 
is owned by the client. 

(2) Additional value in real property 
contiguous to the principal place of 



m- 



residence shall be a countable resource. 
The exclusion of the homesite from 



countable — resources — set — forth — m 
Subparagraphs (f)(1) and (2) of thi s 
Rule shall al s o be applicable for all 
aged, blind, or disabled cases when the 
client is in long term care and hi s 
s pou s e, — minor — children, — er — adult 
disabled children remain in the home or 
a physician has certified in writing that 
the client will return home within six 
months from the date of entry into the 
hospital or long term care facility. 

tg) For categorically needy aged, blind or 

disabled cases without grandfathered protection, 
nonhomc property and personal property that i s 
income — producing — sbaH — be — excluded — from 
resources when the budget unit's equity in the 
property docs not exceed six thousand dollar s 
($6,000) and the property produces a net annual 
return of at least six percent of the excludable 
equity value for each income producing activity. 

(g) {&) For medically needy Families and 
Children cases and medically needy aged, blind or 
disabled cases without grandfathered protection, if 
the client or any member of the budget unit has 
ownership in a probated estate, the value of the 
individual's proportionate share of the countable 
property shall be a countable resource unless the 
property can be excluded as the homesite or as 
income producing property, as stated in 
Paragraphs (e) and (f) of this Rule. 

(h) ft) For family and children's related cases 
the The equity in non-excluded real property shall 
be counted toward the reserve level of the budget 
unit. 

£i} {$ A motor vehicle shall be determined an 
essential vehicle for medically needy Family and 
Children's related cases, when it must be specially 
equipped for use by a handicapped individual, used 
to obtain regular medical treatment, or used to 
retain employment, as follows: 

{V) For aged, blind or disabled individualo 

with grandfathered protection, if public 
transportation cannot be used because it 
is — aet — available — er — because — of hio 
physical or mental condition and th e 
vehicle is needed to: 
{A) — Obtain regular medical treatment, or 
£B) — Retain employment, or 
{€-) — Go s hopping if the shopping area ia 
more than one half mile from th e 
client's home, or 
{&) — Ge — s hopping — if- — the — client — is 
responsible — fef — s hopping — ftfid — is 



978 



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PROPOSED RULES 



physically — limited — from — walking 
one half mile, or 
{E) — Transport children to and from school 
sad — the — school — is — net — within 
reasonable walking distance; 

(3) F&f — aged, — blind — ef — disabled — eases 

without grandfathered protection and 

medically needy Family and Children's 

related — cases, — a — vehicle — mu s t — be 

specially — equipped — fef — use — by — a 

handicapped individual, u s ed to obtain 

regular medical treatment, or used to 

retain employment. 

Ill 6^ For family and children's related cases 

the The value of non-excluded motor vehicles is 

the Current Market Value, less encumbrances. If 

the applicant/recipient disagrees with the assigned 

value, he has the right to rebut the value. 

(k) #) For family and children's related cases 
the The current market value of a remainder 
interest in life estate shall be determined by 
applying the remainder interest percentage from 
the chart in the Medicaid Eligibility Manual to the 
tax value of the property. A lower current market 
value for remainder interest may be established by 
offering the interest for sale and the highest offer 
received, if any, is less than the value determined 
by application of the values chart to the tax value. 
{m) — For all aged, blind or disabled cases, up to 
one thou s and five hundred dollars ($1,500) may be 
excluded from countable resources for the client 
and hi s spouse under the burial exclusion. — Apply 
the one thousand five hundred dollar ($1,500) 
burial exclusion for each individual separately. 
Only the following resources may be excluded and 
they must be excluded in the following order: 

{T) Irrevocable pre need burial contracts, 

burial — trusts, — ef — other — irrevocable 
arrangements — established — fef — burial 
expenses; 

{3) Face value of life insurance policies 

that accrue cash value when the total 
face value of all policies for the budget 
unit — is — eee — thousand — five — hundred 
dollars ($1,500) or le ss and the cash 
value was not counted in reserve; 

{3} Revocable — burial — contracts — or trusts 

established for burial expenses. — Any 
excess remains a countable resource; 

(4) Cash value of life insurance that has 

been designated for burial expen s es if 
the — eash — value — was — considered — m 



dctcrmi 



countable 



lining countable reserve. Any 

cosh value in excess of one thousand 
five hundred dollars ($1,500) remains a 



countable resource. 

{#) For all aged, blind or disabled cases and 
medically needy Family and Children's related 
cases, the value of trust funds established for the 
client or for any member of the budget unit is a 
countable resource unless it is determined by the 
courts that the funds arc not available for the 
beneficiary of the trust. 

(Editor's Note: Paragraph (n) above is proposed 
to be deleted with a November 1, 1994 effective 
date subject to review by the Rules Review 
Commission.) 

£Q {ft) For a married individual: 

(1) Resources available to the individual 
are available to his or her spouse who 
is a noninstitutionalized applicant or 
recipient and who is either living with 
the individual or temporarily absent 
from the home, irrespective of the 
terms of any will, deed, contract, 
antenuptial agreement, or other 
agreement, and irrespective of whether 
or not the individual actually 
contributed the resources to the 
applicant or recipient. All resources 
available to an applicant or recipient 
under these rules must be considered 
when determining his or her countable 
reserve. 

(2) For an institutionalized spouse as 
defined in 42 U.S.C. 1396r-5(h), 
available resources shall be determined 
in accordance with 42 U.S.C. 1396r- 
5(c), except as specified in Paragraph 
(p) of this Rule. 

(m) {©) For an institutionalized individual, the 
availability of resources are determined in 
accordance with 42 U.S.C. 1396r-5. Resources of 
the community spouse are not counted for the 
institutionalized spouse when: 

(1) Resources of the community spouse 
cannot be determined or cannot be 
made available to the institutionalized 
spouse because the community spouse 
cannot be located; or 

(2) The couple has been continuously 
separated for 12 months at the time the 
institutionalized spouse enters the 
institution. 

Authority G.S. 108A-54; 108A-55; 143-127. 1(d); 
S.L. 1983, c. 1116; 42 U.S.C. 1396r-5; 42 U.S.C 
1396a(a)(17); 42 U.S.C. 1396a(a)(51); 42 CF.R. 
435.602; 42 CF.R. 435.711; 42 CF.R. 435.712; 
42 CF.R. 435.723; 42 CF.R. 435.734; 42 CF.R. 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



979 



PROPOSED RULES 



435.821; 42 C.ER. 435.822; 42 C.F.R. 435.823; 
42 C.F.R. 435.845; 45 C.F.R. 233.20; 45 C.F.R. 
233.51; Deficit Reduction Act of 1984 (PL. 
98-369), Section 2373; Correll v. DSS/DMA/DHR, 
No. 406PA91 (North Carolina Supreme Court); 
Schweiker v. Gray Panthers, 453 U.S. 34, 101 
S.Ct. 2633, 69 L. Ed. 2d 460 (1981). 

.0404 INCOME 

(a) Income that is actually available and that 
which the client or someone acting in his behalf 
can legally make available for support and 
maintenance shall be counted. 

(b) Only income actually available or predicted 
to be available to the budget unit for the 
certification period eligibility is being determined 
shall be counted. 

(c) Disrcgards.(l) For aged, blind, and disabled 
cases allow income disregards based on disregards 
allowed by Title XVI of the Social Security Act. 
M AA or M AD clients, disregard the first twenty 
dollars ($20.00) per month of earned income, plus 
one half of the next sixty dollars ($60.00), not to 
exceed a total disregard of fifty dollars ($50.00) 
monthly. 

{3} For M AB clients, di s regard the first 

eighty five dollars ($85.00) per month 
of earned income, plu s one half of the 
remainder. 

&) If earned income is paid in a lump sum 

for services rendered over a period of 
more — then — eee — month, — apply — the 
disregard on a monthly basis for the 
number of months involved. 

(d) Deductions subtracted after disregards are: 

(1) Child or incapacitated adult care not to 
exceed one hundred and seventy-five 
dollars ($175.00) per child over two 
years of age or adult or two hundred 
dollars ($200.00) per child under two 
years of age for Family and Children's 
related cases. 

Q) Child care cost for M AABD cases. 

(2) 0) A standard deduction of ninety 
dollars ($90.00) from the total earned 
income of each budget unit member for 
Family and Children's related cases. 

(3) {4) For aged, blind, and disabled cases 
apply income deductions based on 
deductions allowed by Title XVI of the 
Social Security Act. A standard deduc 
tion is based on the amounts listed 
below for aged, blind or disabled cases, 
ef — actual — work — related — expen s es — if 
greater than the standard, but in no ease 



may the deduction exceed oixty five 
dollars ($65.00) plu s one half of the 
remainder of gros s income. 



Gros s Income 
$-4- 59 

3 r ■ iTAi 
1 n T 1SQ 
XSX 3AG 

1J1 XT-HJ 

^01 'Ifif) 



Standard Deduction 

$■> op 
E . UU 

A (Y) 
■t . \J\J 

44^00 

43^0 

127.00 



{e) — Exemptions. 

£4) After applying all disregards and deduc - 
tion s , — twenty — dollars — ($20.00) — pef 
month shall bo exempted from income 
from any s ource for aged, blind, or 
disabled cases per budget unit. 

{3} The twenty dollar ($20.00) exemption 

shall be applied for individuals in long 
term care only to establish financial 
eligibility for Medicaid. — It shall not be 
allowed in the computation for cost of 

CQjC 

(e) if) Except for M-PW wages, wage deduc- 
tions and work-related expenses shall be calculated 
by converting the average amount per pay period 
into a monthly amount: 

(1) If paid weekly, multiply by 4.333. 

(2) If paid bi-weekly, multiply by 2.1666. 

(3) If paid semi-monthly, multiply by 2. 

(4) If paid monthly, use the monthly gross. 

(5) If salaried, and contract renewed annu- 
ally, divide annual income etc. by 12. 

(f) fg) For M-PW cases, the budget unit's actual 
income for the calendar month of eligibility shall 
be verified. 

Authority G.S. 108A-25(b); 42 C.F.R. 435.121; 42 
C.F.R. 435.401; 42 C.F.R. 435.603; 42 C.F.R. 
435.731; 42 C.F.R. 435.732; 42 C.F.R. 435.734; 
42 C.F.R. 435.812; 42 C.F.R. 435.831; 45 C.F.R. 
435.845; 45 C.F.R. 435.851; 45 C.F.R. 233.20; 
45 C.F.R. 233.51. 

.0408 CLASSIFICATION 

(a) The following individuals shall be classified 
as categorically needy: 

(1) Individuals who receive cash payments 
under programs of public assistance; 

(2) Deemed recipients of SSI described in 
Item (IT) of Rule .0101 of this Sub- 
chapter; or Individuals who arc eligible 
for public assistance cash payments but 



980 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



who choose not to apply for cash pay 
mcnts; 

(3) Deemed recipients of AFDC described 
in Paragraph Sub-item £2)(b) of Rule 
.0101 of this Subchapter; 

(4) Pregnant women described in: 

(A) Paragraph (c) Item £3} or <m) £13) of 
Rule .0101 of this Subchapter; or 

(B) Subparagraph (d((l) Sub-item (l)(d) 
of Rule .0102 of this Subchapter; 

(5) Individuals under 21 described in: 

(A) Paragraph Item {d) £4) or (a) £14) of 
Rule .0101 of this Subchapter; or 

(B) Subparagraph (a)(1) or (a)(2) Sub- 
item (l)(a) of Rule .0102 of this 
Subchapter; or 

(C) Subparagraph (a)(3) Sub-item (l)(d) 
of Rule .0102 of this Subchapter who 
meet the eligibility requirements for 
categorically needy in this Subchap- 
ter; 

(6) Qualified Medicare Beneficiaries de- 
scribed in Paragraph Item (1) of Rule 
.0101 of this Subchapter; 

(7) Individuals described in Paragraph Item 
(^ £9), e* £) £10) or £U) of Rule .0101 
of this Subchapter who were receiving 
cash assistance payments in December 
1973; 

(8) Individuals described in Paragraph (c) 
Item £5) of Rule .0101 of this Subchap- 
ter who were classified categorically 
needy when pregnancy terminated; ef 

(9) Individuals described in Paragraph (f) 
Item £6) of Rule .0101 of this Subchap- 
ter whose mother is classified as cate- 
gorically needy;. 

(10) Individuals described in Sub-item (l)(c) 
of Rule .0102 of this Subchapter; or 

(11) Individuals described in Sub-item (l)(d) 
of Rule .0102 of this Subchapter. 

(b) The following individuals who are not 
eligible as categorically needy and meet the re- 
quirements for medically needy set forth in this 
Subchapter shall be classified medically needy: 

(1) Pregnant women described in: 

(A) Paragraph (c) Item £5} of Rule .0101 
of this Subchapter who were classified 
medically needy when their pregnancy 
terminated; or 

(B) Subparagraph (d)(2) Sub-item (4)(b) 
of Rule .0102 of this Subchapter; 

(2) Individuals under age 21; 

(3) Caretaker relatives of eligible dependent 
children; or 



(4) Aged, blind or disabled individuals not 
eligible for a public assistance cash 
payment. 

Authority G.S. 108A-54; 42 C.F.R. 435.2; 42 
C.F.R. 435.4. 

TITLE 12 - DEPARTMENT OF 
JUSTICE 

I\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Criminal 
Justice Education and Training Standards Commis- 
sion intends to amend rule cited as 12 NCAC 9 A 
.0103. 

lhe proposed effective date of this action is 
January 1, 1995. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Any person interested in this proposed rule 
amendment may demand a Public Rule-Making 
Hearing by submitting a written request for such 
hearing to the Commission within 15 days of 
publication of this notice. This request should be 
directed to Scott Perry, Deputy Director, at the 
address listed below. 

Mxeason for Proposed Action: This rule amend- 
ment is required in order to accurately revise the 
Commission 's definitions for "Class A " and "Class 
B " misdemeanor, which will be materially altered 
when the Structured Sentencing Act (1993 Session 
Laws, Chapters 538 and 539) becomes effective on 
October 1, 1994. Failure to allow this rule 
amendment will abolish the Commission 's ability to 
evaluate criminal justice applicants and officers 
based upon the commission or conviction of 
misdemeanor offenses. 

(comment Procedures: Any person interested in 
this proposed rule amendment may present written 
comments relevant to the proposed action to the 
Commission by November 2, 1994. Written 
comments should be directed to Scott Perry, 
Deputy Director, at the address listed below. This 
proposed rule amendment is available for public 
inspection and copies may be obtained at the 
following address: Criminal Justice Standards 
Division, N. C. Dept. of Justice, 1 West Morgan 
Street, Room 150, Court of Appeals Bldg., P.O. 



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981 



PROPOSED RULES 



Drawer 149, Raleigh, NC 27602. 

CHAPTER 9 - CRIMINAL JUSTICE 

EDUCATION AND TRAINING 

STANDARDS 

SUBCHAPTER 9A - CRIMINAL JUSTICE 

EDUCATION AND TRAINING 

STANDARDS COMMISSION 

SECTION .0100 - COMMISSION 
ORGANIZATION AND PROCEDURES 

.0103 DEFINITIONS 

The following definitions apply throughout this 
Chapter, except as modified in 12 NCAC 9A 
.0107 for the purpose of the Commission's 
rule-making and administrative hearing procedures: 

(1) "Agency" or "Criminal Justice Agency" 
means those state and local agencies 
identified in G.S. 17C-2(b). 

(2) "Alcohol Law Enforcement Agent" 
means a law enforcement officer 
appointed by the Secretary of Crime 
Control and Public Safety as authorized 
by G.S. 18B-500. 

(3) "Commission" means the North Carolina 
Criminal Justice Education and Training 
Standards Commission. 

(4) "Commission of an offense" means a 
finding by the North Carolina Criminal 
Justice Education and Training Standards 
Commission or an administrative body 
that a person performed the acts 
necessary to satisfy the elements of a 
specified criminal offense. 

(5) "Convicted" or "Conviction" means and 
includes, for purposes of this Chapter, 
the entry of: 

(a) a plea of guilty; 

(b) a verdict or finding of guilt by a jury, 
judge, magistrate, or other duly 
constituted, established, and recognized 
adjudicating body, tribunal, or official, 
either civilian or military; or 

(c) a plea of no contest, nolo contendere, 
or the equivalent. 

(6) "Correctional Officer" means any 
employee of the North Carolina 
Department of Correction who is 
responsible for the custody or treatment 
of inmates. 

(7) "Criminal Justice Officer(s)" means those 
officers identified in G.S. 17C-2(c) and 
further includes probation and parole 



intake officers; probation/parole 
officers-surveillance; probation/parole 
intensive officers; and, state parole case 
analysts. 

(8) "Criminal Justice System" means the 
whole of the State and local criminal 
justice agencies described in Item (1) of 
this Rule. 

(9) "Criminal Justice Training Points" means 
points earned toward the Criminal Justice 
Officers' Professional Certificate 
Program by successful completion of 
commission-approved criminal justice 
training courses. Twenty classroom 
hours of commission-approved criminal 
justice training equals one criminal 
justice training point. 

(10) "Department Head" means the chief 
administrator of any criminal justice 
agency and specifically includes any chief 
of police or agency director. 
"Department Head" also includes a 
designee formally appointed in writing by 
the Department head. 

(11) "Director" means the Director of the 
Criminal Justice Standards Division of 
the North Carolina Department of 
Justice. 

(12) "Educational Points" means points earned 
toward the Professional Certificate 
Programs for studies satisfactorily 
completed for semester hour or quarter 
hour credit at an accredited institution of 
higher education. Each semester hour of 
college credit equals one educational 
point and each quarter hour of college 
credit equals two-thirds of an educational 
point. 

(13) "Enrolled" means that an individual is 
currently actively participating in an 
on-going forma] presentation of a 
commission-accredited basic training 
course which has not been concluded on 
the day probationary certification expires. 
The term "currently actively 
participating" as used in this definition 
means: 

(a) for law enforcement officers, that the 
officer is then attending an approved 
course presentation averaging a 
minimum of twelve hours of instruction 
each week; and 

(b) for Youth Services and Department of 
Correction personnel, that the officer is 
then attending the last or final phase of 



982 



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NORTH CAROLINA REGISTER 



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PROPOSED RULES 



the approved training course necessary 
for fully satisfying the total course 
completion requirements. 

(14) "High School" means a school accredited 
as a high school by: 

(a) the Department or board of education 
of the state in which the school is 
located; or 

(b) the recognized regional accrediting 
body; or 

(c) the state university of the state in which 
the school is located. 

(15) "In-Service Training" means any and all 
training prescribed in Subchapter 9E Rule 
.0102 which must be satisfactorily 
completed by all certified law 
enforcement officers during each full 
calendar year of certification. 

(16) "Lateral Transfer" means the employment 
of a criminal justice officer, at any rank, 
by a criminal justice agency, based upon 
the officer's special qualifications or 
experience, without following the usual 
selection process established by the 
agency for basic officer positions. 

(17) "Law Enforcement Code of Ethics" 
means that code adopted by the 
Commission on September 19, 1973, 
which reads: 

As a law enforcement officer, my fundamental 
duty is to serve the community; to safeguard lives 
and property; to protect the innocent against 
deception, the weak against oppression or 
intimidation, and the peaceful against violence or 
disorder; and to respect the constitutional rights of 
all to liberty, equality, and justice. 

I will keep my private life unsullied as an 
example to all, and will behave in a manner that 
does not bring discredit to me or to my agency. I 
will maintain courageous calm in the face of 
danger, scorn, or ridicule; develop self-restraint; 
ind be constantly mindful of the welfare of others. 
Honest in thought and deed both in my personal 
md official life, I will be exemplary in obeying the 
aw and the regulations of my department. 
Whatever I see or hear of a confidential nature or 
hat is confided to me in my official capacity will 
De kept ever secret unless revelation is necessary 
n the performance of my duty. 

I will never act officiously or permit personal 
eelings, prejudices, political beliefs, aspirations, 
inimosities or friendships to influence my 
lecisions. With no compromise for crime and 
vith relentless prosecution of criminals, I will 
;nforce the law courteously and appropriately 



without fear or favor, malice or ill will, never 
employing unnecessary force or violence and never 
accepting gratuities. 

I recognize the badge of my office as a symbol 
of public faith, and I accept it as a public trust to 
be held so long as I am true to the ethics of the 
police service. I will never engage in acts or 
corruption or bribery, nor will I condone such acts 
by other police officers. I will cooperate with all 
legally authorized agencies and their 
representatives in the pursuit of justice. 

I know that I alone am responsible for my own 
standard of professional performance and will take 
every reasonable opportunity to enhance and 
improve my level of knowledge and competence. 

I will constantly strive to achieve these objectives 
and ideals, dedicating myself before God to my 
chosen profession... law enforcement. 

(18) "Law Enforcement Officer" means an 
appointee of a criminal justice agency or 
of the State or of any political 
subdivision of the State who, by virtue of 
his office, is empowered to make arrests 
for violations of the laws of this State. 
Specifically excluded from this title are 
sheriffs and their sworn appointees with 
arrest authority who are governed by the 
provisions of Chapter 17E of the General 
Statutes. 

(19) "Law Enforcement Training Points" 
means points earned toward the Law 
Enforcement Officers' Professional 
Certificate Program by successful 
completion of commission-approved law 
enforcement training courses. Twenty 
classroom hours of commission-approved 
law enforcement training equals one law 
enforcement training point. 

(20) "Local Confinement Personnel" means 
any officer, supervisor or administrator 
of a local confinement facility in North 
Carolina as defined in G.S. 153A-217; 
any officer, supervisor or administrator 
of a county confinement facility in North 
Carolina as defined in G.S. 153A-218; 
or, any officer, supervisor or 
administrator of a district confinement 
facility in North Carolina as defined in 
G.S. 153A-219. 

(21) "Misdemeanor" means those criminal 
offenses not classified under the laws, 
statutes, or ordinances as felonies. 
Misdemeanor offenses are classified by 
the Commission as follows: 

(a) "Class A Misdemeanor" means an act 



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983 



PROPOSED RULES 



committed or omitted in violation of 
any common law, duly enacted 
ordinance^ or criminal statute; — ef 
criminal traffic cod e of this stat e, or 



a- 



any other jurisdiction, cither civil — ef 
military, — fef — which — the — maximum 
punishment allowable for the designated 
offen s e under the — laws, — statutes, — ef 
ordinances of the jurisdiction in which 
tfte offense occurred includes 



imprisonment for a term of not more 
than six months, which is not classified 
as a Class B Misdemeanor pursuant to 
Sub-item (21)(b) of this Rule. Class A 
Misdemeanor also includes any act 
committed or omitted in violation of 
any common law, duly enacted 
ordinance, criminal statute, or criminal 
traffic code of any jurisdiction other 
than North Carolina, either civil or 
military, for which the maximum 
punishment allowable for the designated 
offense under the laws, statutes, or 
ordinances of the jurisdiction in which 
the offense occurred includes 
imprisonment for a term of not more 
than six months. Specifically excluded 
from this grouping of " Class clas s A 
Misdemeanor misdemeanor " criminal 
offenses for jurisdictions other than 
North Carolina, are motor vehicle or 
traffic offenses designated as 
misdemeanors under Chapter 20 (Motor 
Vehicles) — of the — General — Statutes — ef 
North — Carolina, — similar the laws of 
other jurisdictions, or duly enacted 
ordinances of an authorized 
governmental entity with the exception 
of the offense of impaired driving (G.S. 
20 138.1) which is expressly included 
herein as a Class class A Misdemeanor 
misdemeanor , if the defendant offender 
was could have been sentenced under 
punishment level three [G.S. 20 179(i)], 
level four [G.S. 20 179(j)], or level five 
[G.S. 20 179(k)]. for a term of not 
more than six months. Also 

specifically included herein as a Class 
A Misdemeanor is the offense of 
impaired driving, if the offender was 
sentenced under punishment level three 
rG.S. 20-179(i)l, level four fG.S. 20- 
179(j)l, or level five fCS. 20-179(101. 
Class A Misdemeanor shall also include 
acts committed or omitted in North 



Carolina prior to October l± 1994 in 
violation of any common law, duly 
enacted ordinance or criminal statute, of 
this state for which the maximum 
punishment allowable for the designated 
offense included imprisonment for a term 
of not more than six months. 
(b) "Class B Misdemeanor" means an act 
committed or omitted in violation of 
any common law, criminal statute, or 
criminal traffic code of this stat e, or 
any other jurisdiction, cither civil or 
military, — fef — which — the — maximum 
punishment allowable for the designated 
offense under the — laws, — statutes, — er 
ordinances of the juri s diction in which 

tbe offense occurred include s 

impri s onment for a term of more than 
s+x — months — btrt — Bet — more than two 
year s , which is classified as a Class B 
Misdemeanor as set forth in the Class B 
Misdemeanor manual as published by 
the North Carolina Department of 
Justice and shall automatically include 
any later amendments and editions of 
the incorporated material as provided 
by OS, 150B-21.6. Copies of the 
publication may be obtained from the 
North Carolina Department of Justice, 
Post Office Box 629, Raleigh, North 
Carolina 27602. There is no cost per 
manual at the time of adoption of this 
Rule. Class B Misdemeanor also 
includes any act committed or omitted 
in violation of any common law, duly 
enacted ordinance, criminal statute, or 
criminal traffic code of any jurisdiction 
other than North Carolina, either civil 
or military, for which the maximum 
punishment allowable for the designated 
offense under the laws, statutes, or 
ordinances of the jurisdiction in which 
the offense occurred includes 
imprisonment for a term of more than 
six months but not more than two 
years. Specifically excluded from this 
grouping of " Class cla ss B 
Misdemeanor misdemeanor " criminal 
offenses for jurisdictions other than 
North Carolina, are motor vehicles 
vehicle or traffic offenses designated as 
being misdemeanors under Chapter 20 
(Motor — Vehicles) — ef- — tee — General 
Statutes of North Carolina or similar 
the laws of other jurisdictions with the 



984 



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PROPOSED RULES 



(22) 



(23) 



(24) 



following exceptions^ : Class B 

Misdemeanor mi s demeanor does 

expressly include, either first or 

subsequent offenses of G.S. 20 13 8 (a) 

or (b), G.S. — 20 139 (person s under 

influence of drugs), G.S. 20 2 8 (b) 

(driving — while — license — permanen tly 

revoked — ef — permanen tly — suspended), 

and G.S. 20 166 (duty to stop in event 

of accident), driving while impaired if 

the maximum allowable punishment is 

for a term of more than six months but 

not more than two years, and driving 

while license permanently revoked or 

permanently suspended. "Class B 

Misdemeanor" shall also include acts 

committed or omitted in North Carolina 

prior to October 1^ 1994 in violation of 

any common law, duly enacted 

ordinance, criminal statute, or criminal 

traffic code of this state for which the 

maximum punishment allowable for the 

designated offense included 

imprisonment for a term of more than 

six months but not more than two 

years. This definition further includes 

a violation of G.S. 20 13 8 .1 (impaired 

driving) if the defendant was s entenced 

under — punishment — level — ene — [G.S. 

20 179(g)] or punishment level — twe 

[G.S. 20 179(h)] for the offense. 

"Parole Case Analyst" means an 

employee of the North Carolina 

Department of Correction who works 

under the supervision of the North 

Carolina Parole Commission, whose 

duties include analyzing and processing 

cases under consideration for parole, 

preparing and presenting parole 

recommendations, analyzing and 

processing executive clemency matters 

and interviewing inmates. 

"Pilot Courses" means those courses 

developed consistent with the curriculum 

development policy adopted by the 

Commission on May 30, 1986. This 

policy shall be administered by the 

Education and Training Committee of the 

Commission consistent with Rule 9C 

.0404. 

"Probation/Parole Officer" means an 
employee of the Division of Adult 
Probation and Parole whose duties 
include supervising, evaluating, treating, 
or instructing offenders placed on 



probation or parole or assigned to any 
other community-based program operated 
by the Division of Adult Probation and 
Parole. 

(25) "Probation/Parole Intake Officer" means 
an employee of the Division of Adult 
Probation and Parole, other than a 
regular Probation/Parole officer, whose 
duties include conducting, preparing, or 
delivering investigations, reports, and 
recommendations, either before or after 
sentencing, upon the request or referral 
of the court, the Parole Commission, or 
the Director of the Division of Adult 
Probation and Parole. 

(26) "Probation/Parole Intensive Officer" 
means an employee of the Division of 
Adult Probation and Parole other than a 
regular probation/parole officer, 
probation/parole intake officer, and 
probation/parole officer-surveillance who 
is duly sworn, empowered with the 
authority of arrest and is an authorized 
representative of the courts of North 
Carolina and the Department of 
Correction, Division of Adult Probation 
and Parole, whose duties include 
supervising, investigating, reporting, 
counseling, treating, and surveillance of 
serious offenders in an intensive 
probation and parole program operated 
by the Division of Adult Probation and 
Parole who serves as the lead officer in 
such a unit. 

(27) "Probation/Parole Officer - Surveillance" 
means an employee of the Division of 
Adult Probation and Parole other than a 
regular probation/parole and a 
probation/parole intake officer who is 
duly sworn, empowered with the 
authority of arrest and is an authorized 
representative of the courts of North 
Carolina and the Department of 
Correction, Division of Adult Probation 
and Parole whose duties include 
supervising, investigating, reporting, and 
surveillance of serious offenders in an 
intensive probation and parole program 
operated by the Division of Adult 
Probation and Parole who is trained in 
community corrections and law 
enforcement techniques. 

(28) "Radar" means a speed-measuring 
instrument that transmits microwave 
energy in the 10,500 to 10,550 MHz 



9:13 



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October 3, 1994 



985 



PROPOSED RULES 



frequency (X) band or transmits micro- 
wave energy in the 24,050 to 24,250 
MHz frequency (K) band and either of 
which operates in the stationary and/or 
moving mode. "Radar" further means a 
speed-measuring instrument that transmits 
microwave energy in the 33,400 to 
36,000 MHz (Ka) band and operates in 
either the stationary or moving mode. 

(29) "Resident" means any youth committed 
to a facility operated by the North Caroli- 
na Division of Youth Services. 

(30) "School" or "criminal justice school" 
means an institution, college, university, 
academy, or agency which offers crimi- 
nal justice, law enforcement, penal, 
correctional, or traffic control and en- 
forcement training for criminal justice 
officers or law enforcement officers. 
"School" includes the criminal justice 
training course curriculum, instructors, 
and facilities. 

(31) "School Director" means the person 
designated by the sponsoring institution 
or agency to administer the criminal 
justice school. 

(32) "Speed-Measuring Instruments" means 
those devices or systems formally ap- 
proved and recognized under authority of 
G.S. 17C-6(a)(13) for use in North Caro- 
lina in determining the speed of a vehicle 
under observation and particularly in- 
cludes all named devices or systems as 
specifically restricted in the approved list 
of 12 NCAC 9C .0601. 

(33) "Standards Division" means the Criminal 
Justice Standards Division of the North 
Carolina Department of Justice. 

(34) "Time-Distance" means a speed 
-measuring instrument that electronically 
computes, from measurements of time 
and distance, the average speed of a 
vehicle under observation. 

(35) "State Youth Services Officer" means an 
employee of the North Carolina Division 
of Youth Services whose duties include 
the evaluation, treatment, instruction, or 
supervision of juveniles committed to that 
agency. 

Statutory Authority G.S. 17C-2; 17C-6; 17C-10; 
153A-217. 



iSotice is hereby given in accordance with G.S. 
150B-21. 2 that the North Carolina Sheriffs ' Educa- 
tion and Training Standards Commission intends to 
amend rule cited as 12 NCAC 10B .0103. 

1 he proposed effective date of this action is 
January 1, 1995. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Any person interested in this proposed rule 
amendment may demand a Public Rule-Making 
Hearing by submitting a written request for such 
hearing to the Commission within 15 days of 
publication of this notice. This request should be 
directed to Joan Neuner, Director, at the address 
listed below. 

ixeason for Proposed Action: This rule amend- 
ment is required in order to accurately revise the 
Commission's definitions for "Class A " and "Class 
B " misdemeanor, which will be materially altered 
when the Structured Sentencing Act (1993 Session 
Laws, Chapters 538 and 539) becomes effective on 
October 1, 1994. Failure to allow this rule 
amendment will abolish the Commission 's ability to 
evaluate criminal justice applicants and officers 
based upon the commission or conviction of 
misdemeanor offenses. 

i^omment Procedures: Any person interested in 
this proposed rule amendment may present written 
comments relevant to the proposed action to the 
Commission by November 2, 1994. Written 
comments should be directed to Joan Neuner, 
Director, at the address listed below. This 
proposed rule amendment is available for public 
inspection and copies may be obtained at the 
following address: Sheriffs' Standards Division, 
N.C. Dept. of Justice, P.O. Drawer 629, Raleigh, 
NC 27602. 

CHAPTER 10 - N.C SHERIFFS' 

EDUCATION AND TRAINING 

STANDARDS COMMISSION 

SUBCHAPTER 10B - NC SHERIFFS' 

EDUCATION AND TRAINING 

STANDARDS COMMISSION 



****************** 



SECTION .0100 - COMMISSION 
ORGANIZATION AND PROCEDURES 



986 



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October 3, 1994 



PROPOSED RULES 



.0103 DEFINITIONS 

In addition to the definitions set forth in G.S. 
17E-2, the following definitions apply throughout 
this Chapter, unless the context clearly requires 
otherwise: 

(1) "Appointment" as it applies to a deputy 
sheriff means the date the deputy's oath 
of office is administered, and as it applies 
to a jailer means either the date the 
jailer's oath of office was administered, 
if applicable, or the jailer's actual date of 
employment as reported on the Report of 
Appointment (Form F-4) by the 
employing agency, whichever is earlier. 

(2) "Convicted" or "Conviction" means and 
includes, for purposes of this Chapter, 
the entry of: 

(a) a plea of guilty; 

(b) a verdict ef- or finding of guilt by a 
jury, judge, magistrate, or other duly 
constituted, established, and recognized 
adjudicating body, tribunal, or official, 
either civilian or military; or 

(c) a plea of no contest, nolo contendere, 
or the equivalent. 

(3) "Department Head" means the chief 
administrator of any criminal justice 
agency. Department head includes the 
sheriff or a designee formally appointed 
in writing by the Department head. 

(4) "Director" means the Director of the 
Sheriffs' Standards Division of the North 
Carolina Department of Justice. 

(5) "Division" means the Sheriffs' Standards 
Division. 

(6) "High School" means a school accredited 
as a high school by: 

(a) the Department or Board of Education 
of the state in which the high school is 
located; or 

(b) the recognized regional accrediting 
body; or 

(c) the state university of the state in which 
the high school is located. 

(7) "Enrolled" means that an individual is 
currently actively participating in an 
on-going formal presentation of a 
commission-accredited basic training 
course which has not been concluded on 
the day probationary certification expires. 

(8) "Essential Job Functions" means those 
tasks deemed by the agency head to be 
necessary for the proper performance of 
a justice officer. 

(9) "Lateral Transfer" means certification of 



a justice officer when the applicant for 

certification has previously held general 

or grandfather certification as a justice 

officer or a criminal justice officer as 

defined in G.S. 17C-2(c), excluding state 

correctional officers, state 

probation/parole officers, and state youth 

services officers, provided the applicant 

has been separated from a sworn law 

enforcement position for no more than 

one year, or has had no break in service. 

(10) "Misdemeanor" means those criminal 

offenses not classified by the North 

Carolina General Statutes, the United 

States Code, the common law, or the 

courts as felonies. Misdemeanor offenses 

are classified by the Commission as 

follows: 

(a) "Class A Misdemeanor" means an act 

committed or omitted in violation of 

any common law, duly enacted 

ordinancer or criminal statute; — ef 

criminal traffic code of this stat e, or 

any other jurisdiction, either civil or 

military, fef which maximum 

punishment allowable for the designated 
offense — under the — laws, — statutes, — ef 
ordinances of the juri s diction in which 
the offense occurred or its political 
subdivisions includes imprisonment -fef 
a — terra — ef- — net — more — than — six 
month s , which is not classified as a 
Class B Misdemeanor pursuant to Sub- 
item (10)fb) of this Rule. Class A 
Misdemeanor also includes any act 
committed or omitted in violation of 
any common law, duly enacted 
ordinance, criminal statute, or criminal 
traffic code of any jurisdiction other 
than North Carolina, either civil or 
military, for which the maximum 
punishment allowable for the designated 
offense under the laws, statutes, or 
ordinances of the jurisdiction in which 
the offense occurred includes 
imprisonment for a term of not more 
than six months. Specifically excluded 
from this grouping of "Class A 
Misdemeanor" criminal offenses for 
jurisdictions other than North Carolina, 
are motor vehicle or traffic offenses 
designated as misdemeanors under 
Chapter 20 (Motor Vehicles) of the 
General — Statutes — of North — Carolina, 
similar the laws of other jurisdictions, 



9:13 



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October 3, 1994 



987 



PROPOSED RULES 



.hi 



or duly enacted ordinances of an 
authorized governmental entity with the 
exception of the offense of impaired 
driving <Gt&-. — 20 13 8 .1) which is 
expressly included herein as a class A 
misdemeanor, if the defendant offender 
was could have been sentenced under 
puni s hment level three [G.S. 20 179(i)], 
level four [G.S. 20 1790)], or level five 
fG.S. 20 179(101 for a term of not more 
than six months. Also specifically 
included herein as a Class A 
Misdemeanor is the offense of impaired 
driving, if the offender was sentenced 
under punishment level three fG.S. 20- 
179(i)1, level four fG.S. 20-1790)1, or 
level five fG.S. 20-1 79(101. Class "A" 
Misdemeanor shall also include acts 
committed or omitted in North Carolina 
prior to October J^ 1994 in violation of 
any common law, duly enacted 
ordinance or criminal statute, of this 
state for which the maximum 
punishment allowable for the designated 
offense included imprisonment for a 
term of not more than six months . 
"Class B Misdemeanor" means an act 
committed or omitted in violation of 
any common law, criminal statute, or 
criminal traffic code of this stat e, or 



any other jurisdiction, either civil or 
military, — tef — which — the — maximum 
punishment allowable for the designated 
offense under the laws and s tatutes of 
the juri s diction in which the offense 
occurred includes imprisonment for a 
term of more than six months but not 
more than two year s which is classified 
as a Class B Misdemeanor as set forth 
in the "Class B Misdemeanor Manual " 
as published by the North Carolina 
Department of Justice and shall 
automatically include any later 
amendments and editions of the 
incorporated material as provided by 
G.S. 150B-21.6. Copies of the 
publication may be obtained from the 
North Carolina Department of Justice, 
Post Office Box 629, Raleigh, North 
Carolina 27602. There is no cost per 
manual at the time of adoption of this 
Rule. Class B Misdemeanor also 
includes any act committed or omitted 
in violation of any common law, duly 
enacted ordinance, criminal statute, or 



(11) 



(12) 



criminal traffic code of any jurisdiction 
other than North Carolina, either civil 
or military, for which the maximum 
punishment allowable for the designated 
offense under the laws, statutes, or 
ordinances of the jurisdiction in which 
the offense occurred includes 
imprisonment for a term of more than 
six months but not more than two 
years . Specifically excluded from this 
grouping of "Class B Misdemeanor" 
criminal offenses for jurisdictions other 
than North Carolina, are motor vehicles 
vehicle or traffic offenses designated as 
being misdemeanors under Chapter 20 
(Motor — Vehicles) — ©f- — the — General 
Statutes of North Carolina or similar 
the laws of other jurisdictions with the 
following exceptionsT : Class B 
Misdemeanor does expressly include, 
either first or subsequent offenses of 
G.S. 20 138(a) or (b), G.S. 20 166 
(duty to — step — is — event of accident). 
driving while impaired if the maximum 
allowable punishment is for a term of 
more than six months but not more than 
two years, and driving while license 
permanently revoked or permanently 
suspended. "Class B Misdemeanor" 
shall also include acts committed or 
omitted in North Carolina prior to 
October J_, 1994 in violation of any 
common law, duly enacted ordinance, 
criminal statute, or criminal traffic code 
of this state for which the maximum 
punishment allowable for the designated 
offense included imprisonment for a 
term of more than six months but not 
more than two years. This definition 
further includes a violation of G.S. 
20 138.1 — (impaired — driving) — if- — the 

defendant was sentenced under 

punishment level one [G.S. 20 179(g)] 

ef puni s hment level twe [G.S. 

20 179(h)] for the offense and s hall also 

include a violation of G.S. 20 28(b) 

(driving — while — license — permanen tly 

revoked or suspended). 

"Felony" means any offense designated a 

felony by the laws, statutes, or 

ordinances of the jurisdiction in which 

the offense occurred. 

"Dual Certification" means that a justice 

officer holds probationary, general, or 

grandfather certification as both a deputy 



988 



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October 3, 1994 



PROPOSED RULES 



sheriff and a jailer with the same 
employing agency. 

(13) "Jailer" means any person performing 
responsibilities, either on a full-time, 
part-time, permanent or temporary basis, 
which include but are not limited to the 
control, care, and supervision of any 
inmates incarcerated in a county jail or 
other confinement facility under the 
direct supervision and management of the 
sheriff. 

(14) "Deputy Sheriff" means any person who 
has been duly appointed and sworn by 
the sheriff and who is authorized to 
exercise the powers of arrest in 
accordance with the laws of North 
Carolina. 

(15) "Commission" as it pertains to criminal 
offenses shall mean a finding by the 
North Carolina Sheriffs' Education and 
Training Standards Commission or an 
administrative body, pursuant to the 
provisions of Chapter 150B of the North 
Carolina General Statutes, that a person 
performed the acts necessary to satisfy 
the elements of a specified criminal 
offense. 

(16) "Sworn Law Enforcement Position" 
means a position with a criminal justice 
agency of the United States, any state, or 
a political subdivision of any state which, 
by law, has general power of arrest held 
by a person who has successfully 
completed the North Carolina Basic Law 
Enforcement Training Course. 

Statutory Authority G.S. 17E-7. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Marine Fisheries Commis- 
sion intends to amend rules cited as 15 A NCAC 31 
.0001; 3J .0106, .0401; 3M .0504; 30 .0201, 
.0205, .0208 and adopt 31 .0015 - .0016; 3M 
.0513; 30 .0110. 

Ihe proposed effective date of this action is 
March 1, 1995. 

1 he public hearings will be conducted at: 



7:00 p.m. 

November 1, 1994 

NC AQUARIUM 

Manteo, North Carolina 

7:00 p.m. 

November 2, 1994 

Pitt Community College 

Highway US 

Room 153 

Fulford Building 

Greenville, North Carolina 

7:00 p.m. 

November 7, 1994 

Joslyn Hall 

Carteret Community College 

3505 Arendell Street 

Morehead City, North Carolina 

7:00 p.m. 

November 9, 1994 

Archdale Building 

512 North Salisbury Street 

Raleigh, North Carolina 

7:00 p.m. 

November 16, 1994 

John A. Holms High School 

600 Vbodard St. 

Edenton, North Carolina 

7:00 p.m. 

November 17, 1994 

University of North Carolina 

Morton Hall 

Randall Street 

Lot G 

Wilmington, North Carolina 

MXeason for Proposed Action: 
ISA NCAC 31 .0001 - Amends definition of chan- 
nel net for clarification; defines live rock, coral, 
shellfish production, marketing, and planting effort 
of leases and franchises. 

15 A NCAC 31 .0015 - Allows for collection of 
replacement costs for violations of Fisheries Rules. 
Specifies methods for determination of costs; lists 
species for which replacement costs may be as- 
sessed. This should be an additional deterrent to 
violators. 

15A NCAC 31 .0016 - Prohibits the taking of coral 
or live rock. Emergency action in federal waters 
and prohibitions in waters of some southern states 



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October 3, 1994 



989 



PROPOSED RULES 



may cause more pressure on North Carolina 's 
limited amount of this natural resource. 
15A NCAC 3 J .0106 - Restricts area where chan- 
nel nets are allowed. This is needed for naviga- 
tional safety. 

15A NCAC 3 J .0401 - Extends the expiration date 
for this rule another year. Conflicts with gear in 
all areas is yet to be resolved. 
ISA NCAC 3M .0504 - Allows, through proclama- 
tion, for larger size limit on hook-and-line caught 
weakfish. This will allow for a larger creel limit 
as required for compliance by the Atlantic Coastal 
Fisheries Cooperative Management Act. 
ISA NCAC 3M .0513 - Establishes a closed 
season for taking of blueback herring, alewife, 
American shad and hickory shad. Populations of 
these species are at low levels and stocks are 
considered stressed. 

15A NCAC 30 .0110 - Establishes procedures for 
transfer of vessel license both from one vessel to 
another or from one individual to another. Trans- 
fer from one vessel to another was authorized by 
1993 (Regular Session 1994), c. 576, s. 3. 
ISA NCAC 30 .0201 - Outlines process for 
determination of production and marketing on 
leases and franchises. This amendment is neces- 
sary based on a recent contested case ruling. 
15 A NCAC 30 .0205 - Clarifies process for denial 
of renewals because of pollution. This amendment 
is necessary based on a recent contested case 
ruling. 

15 A NCAC 30 .0208 - Requires new lease or 
franchise owners to meet production and marketing 
requirements. This amendment is necessary based 
on a recent contested case ruling. 

Lsomment Procedures: Comments and statements, 
both written and oral, may be presented at the 
hearings. V&itten comments are encouraged and 
may be submitted to the Marine Fisheries Commis- 
sion, PO Box 769, Morehead City, NC 28557. 
Tfiese written and oral comments must be received 
no later than 10 AM, December 1, 1994. Oral 
presentation lengths may be limited depending on 
the number of people that wish to speak at the 
public hearings. 

BUSINESS SESSION 
The Marine Fisheries Commission will conduct a 
Business Session on December 2-3, 1994, at the 
MDS Center, 422 Raleigh Road, Smithfield, NC, 
beginning at 9:00 A.M. on the morning of Decem- 
ber 2, 1994, to decide on these proposed rules. 

CHAPTER 3 - MARINE FISHERIES 



SUBCHAPTER 31 - GENERAL 
RULES 

.0001 DEFINITIONS 

(a) All definitions set out in G.S. 113, Subchap- 
ter IV apply to this Chapter. 

(b) The following additional terms are hereby 
defined: 

(1) Commercial Fishing Equipment. All 
fishing equipment used in coastal fish- 
ing waters except: 

(A) Seines less than 12 feet in length; 

(B) Spears; 

(C) A dip net having a handle not more 
than eight feet in length and a hoop or 
frame to which the net is attached not 
exceeding 60 inches along the perime- 
ter; 

(D) Hook-and-line and bait-and-line equip- 
ment other than multiple-hook or 
multiple-bait trotline; 

(E) A landing net used to assist in taking 
fish when the initial and primary 
method of taking is by the use of 
hook and line; and 

(F) Cast Nets. 

(2) Fixed or stationary net. A net 
anchored or staked to the bottom, or 
some structure attached to the bottom, 
at both ends of the net. 

(3) Mesh Length. The diagonal distance 
from the inside of one knot to the 
outside of the other knot, when the net 
is stretched hand-tight. 

(4) Possess. Any actual or constructive 
holding whether under claim of 
ownership or not. 

(5) Transport. Ship, carry, or cause to be 
carried or moved by public or private 
carrier by land, sea, or air. 

(6) Use. Employ, set, operate, or permit 
to be operated or employed. 

(7) Purse Gill Nets. Any gill net used to 
encircle fish when the net is closed by 
the use of a purse line through rings 
located along the top or bottom line or 
elsewhere on such net. 

(8) Gill Net. A net set vertically in the 
water to capture fish by entanglement 
by the gills in its mesh as a result of net 
design, construction, mesh size, 
webbing diameter or method in which it 
is used. 

(9) Seine. A net set vertically in the water 
and pulled by hand or power to capture 



990 



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October 3, 1994 



PROPOSED RULES 



fish by encirclement and confining fish 
within itself or against another net, the 
shore or bank as a result of net design, 
construction, mesh size, webbing 
diameter, or method in which it is used. 

(10) Internal Coastal Waters or Internal 
Waters. All coastal fishing waters 
except the Atlantic Ocean. 

(11) Channel Net. A net used to take 
shrimp which is anchored or attached to 
the bottom at both end s or with one end 
anchored or attached to the bottom and 
the other end attached to a boat at both 
ends . 

(12) Dredge. A device towed by engine 
power consisting of a frame, tooth bar 
or smooth bar, and catchbag used in the 
harvest of oysters, clams, crabs, 
scallops, or conchs. 

(13) Mechanical methods for clamming. 
Includes, but not limited to, dredges, 
hydraulic clam dredges, stick rakes and 
other rakes when towed by engine 
power, patent tongs, kicking with 
propellers or deflector plates with or 
without trawls, and any other method 
that utilizes mechanical means to 
harvest clams. 

(14) Mechanical methods for oystering. 
Includes, but not limited to, dredges, 
patent tongs, stick rakes and other rakes 
when towed by engine power and any 
other method that utilizes mechanical 
means to harvest oysters. 

(15) Depuration. Purification or the 
removal of adulteration from live 
oysters, clams, and mussels by any 
natural or artificially controlled means. 

(16) Peeler Crab. A blue crab that has a 
soft shell developing under a hard shell 
and having a definite pink, white, or 
red line or rim on the outer edge of the 
back fin or flipper. 

(17) Length of finfish. Determined by 
measuring along a straight line the 
distance from the tip of the snout with 
the mouth closed to the tip of the 
compressed caudal (tail) fin. 

(18) Licensee. Any person holding a valid 
license from the Department to take or 
deal in marine fisheries resources. 

(19) Aquaculture operation. An operation 
that produces artificially propagated 
stocks of marine or estuarine resources 
or obtains such stocks from authorized 



sources for the purpose of rearing in a 
controlled environment. A controlled 
environment provides and maintains 
throughout the rearing process one or 
more of the following: predator 
protection, food, water circulation, 
salinity, or temperature controls 
utilizing proven technology not found in 
the natural environment. 
(20) Critical habitat areas. The fragile 
estuarine and marine areas that support 
juvenile and adult populations of 
economically important seafood species, 
as well as forage species important in 
the food chain. Critical habitats include 
nursery areas, beds of submerged 
aquatic vegetation, shellfish producing 
areas, anadromous fish spawning and 
anadromous fish nursery areas, in all 
coastal fishing waters as determined 
through marine and estuarine survey 
sampling. Critical habitats are vital for 
portions, or the entire life cycle, 
including the early growth and 
development of important seafood 
species. 

(A) Beds of submerged aquatic vegetation 
are those habitats in public trust and 
estuarine waters vegetated with one or 
more species of submerged vegetation 
such as eelgrass (Zostera marina), 
shoalgrass (Halodule wrightii) and 
widgeongrass (Ruppia maritima). 
These vegetation beds occur in both 
subtidal and intertidal zones and may 
occur in isolated patches or cover 
extensive areas. In either case, the 
bed is defined by the presence of 
above-ground leaves or the 
below-ground rhizomes and 
propagules together with the sediment 
on which the plants grow. In defining 
beds of submerged aquatic vegetation, 
the Marine Fisheries Commission 
recognizes the Aquatic Weed Control 
Act of 1991 (G.S. 113A-220 et. seq.) 
and does not intend the submerged 
aquatic vegetation definition and its 
implementing rules to apply to or 
conflict with the non-development 
control activities authorized by that 
Act. 

(B) Shellfish producing habitats are those 
areas in which economically important 
shellfish, such as, but not limited to 



9:13 



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October 3, 1994 



991 



PROPOSED RULES 



clams, oysters, scallops, mussels, and 
whelks, whether historically or 
currently, reproduce and survive 
because of such favorable conditions 
as bottom type, salinity, currents, 
cover, and cultch. Included are those 
shellfish producing areas closed to 
shellfish harvest due to pollution. 

(C) Anadromous fish spawning areas are 
defined as those areas where evidence 
of spawning of anadromous fish has 
been documented by direct 
observation of spawning, capture of 
running ripe females, or capture of 
eggs or early larvae. 

(D) Anadromous fish nursery areas are 
defined as those areas in the riverine 
and estuarine systems utilized by 
post-larval and later juvenile 
anadromous fish. 

(21) Intertidal Oyster Bed. A formation, 
regardless of size or shape, formed of 
shell and live oysters of varying 
density. 

(22) North Carolina Trip Ticket. 
Multiple-part form provided by the 
Department to fish dealers who are 
required to record and report 
transactions on such forms. 

(23) Transaction. Act of doing business 
such that fish are sold, offered for sale, 
exchanged, bartered, distributed or 
landed. The point of landing shall be 
considered a transaction when the 
fisherman is the fish dealer. 

(24) Live rock. Living marine organisms or 
an assemblage thereof attached to a 
hard substrate including dead coral or 
rock (excluding mollusk shells). For 
example, such living marine organisms 
associated with hard bottoms, banks, 
reefs, and live rock may include, but 
are not limited to: 

(A) Animals: 

£i] Sponges (Phylum Porifera); 
(ii) Hard and Soft Corals, Sea 
Anemones (Phylum Cnidaria): 

(I) Fire corals (Class Hydrozoa); 

(II) Gorgonians, whip corals, sea 
pansies, anemones, Solenastrea 
(Class Anthozoa): 

(iii) Bryozoans (Phylum Bryozoa); 
(iv) Tube Worms (Phylum Annelida): 

(I) Fan worms (Sabellidae); 

(II) Feather duster and Christmas 



tree worms (Serpulidae); 
(111) Sand castle wo rms 
(Sabellaridae). 
(v) Mussel banks (Phylum 

Mollusca: Gastropoda) ; 
(vi) Colonial barnacles 
(Arthropoda: Crustacea: Megabala 
nus sp.). 
(B) Plants: 

£i) Coralline algae (Division 



£ii} 



Rhodophyta) 
Acetabularia 
Halimeda 



sp., Udotea 
sp., Caulerpa 



STJ^ 

srx 



(Division Chlorophyta); 
Sargassum sp., Dictvopteris sp.. 
Zo naria sp . (Division 
Phaeophyta) . 



(25) Coral: 

(A) Fire corals and hyrocorals (Class 
Hydrozoa); 

(B) Stony corals and black corals (Class 
Anthozoa. Subclass Scleractinia); 

(C) Octocorals; Gorgonian corals (Class 
Anthozoa. Subclass Octocorallia): 

(]} Sea fans (Gorgonia sp.); 

(ii) Sea whips (Leptogorgia sp. and 

Lophogorgia sp.); 
(iii) Sea pansies (Renilla sp.). 

(26) Shellfish production on leases and 
franchises: 



(A) 



IB] 



(27) 



The culture of oysters, clams, 
scallops, and mussels, on shellfish 
leases and franchises from a sublegal 
harvest size to a marketable size. 
The transplanting (relay) of oysters, 
clams, scallops and mussels from 
designated areas closed due to 
pollution to shellfish leases and 
franchises in open waters and the 
natural cleansing of those shellfish- 
Shellfish marketing from leases and 
franchises. The harvest of oysters, 
clams, scallops, mussels, from privately 
held shellfish bottoms and lawful sale 
of those shellfish to the public at large 
or to a licensed shellfish dealer- 
Shellfish planting effort on leases and 
franchises. The process of obtaining 
authorized cultch materials, seed 
shellfish, and polluted shellfish stocks 
and the placement of those materials on 
privately held shellfish bottoms for 
increased shellfish production. 



Statutory Authority G.S. 113-134; 143B-289.4. 



(28) 



992 



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October 3, 1994 



PROPOSED RULES 



.0015 REPLACEMENT COSTS OF 
MARINE AND ESTUARESfE 
RESOURCES - FISH 

(a) Fish, as used throughout this Rule, is defined 
in G.S. 113-129(7). 

(b) Replacement Costs Distinguished. As it 
applies to fishes the term "replacement costs" must 
be distinguished from the "value" of the fish 
concerned. Except in cases where fish may 
lawfully be sold on the open market, as with 
commercially reared species, the monetary value 
of the specimens cannot be determined easily. The 
degree of special interest or concern in a particular 
species by. the public, including not only anglers, 
but conservationists and those to whom the value 
of fishes is primarily aesthetic, cannot be measured 
in dollar amounts. The average cost of fish legally 
taken by anglers including travel and lodging, 
fishing equipment and bait, excise taxes on 
equipment, licenses and other fees, may fairly be 
estimated. This too, however, js a reflection on 
the value of existing fishery resources rather than 
a measure of the cost of their replacement. Thus, 
the relative value of fish species should be 
considered only as they may bear on the necessity 
or desirability of actual replacement. 

(c) Determining replacement costs. The 
replacement costs of species of fishes that have 
been taken, injured, removed, harmfully altered, 
damaged, or destroyed shall be determined as 
follows. The weight of each undersized fish shall 
be adjusted to the average weight of a fish on the 
minimum legal size established by the Marine 
Fisheries Commission for that species. The 
replacement cost shall be calculated based on the 
greater of either: 

(1) the cost of propagating and rearing the 
species in a hatchery and the cost of 
transporting them to areas of suitable 
habitat; or 

(2) the average annual ex-vessel value of 
fish species per pound. 

The cost of propagating, rearing and 
transporting the fish and the average 
annual ex-vessel value of fish species 
per pound shall be taken from the 
Division of Marine Fisheries annual 
statistical report for the calendar year 
next preceding the year in which the 
offense was committed. When the cost 
of propagating, rearing or transporting 
a particular species is not available, 
replacement costs shall be calculated 
based upon the average annual ex- 
vessel value of the species. When 



£A] 
IB) 
£Q 

ID) 

IE) 
IE) 

IG) 
IH) 



neither the cost of propagating, rearing 
or transporting a particular species, nor 
the average annual ex-vessel value of 
the species is available, replacement 
costs shall be determined according to 
the following factors: 
whether the species is classified as 
endangered or threatened: 
the relative frequency of occurrence 
of the species in the state: 
the extent of existing habitat suitable 
for the species within the state; 
the dependency of the species on 
unique habitat requirements; 
the cost of improving and maintaining 
suitable habitat for the species; 
the cost of capturing the species in 
areas of adequate populations and 
transplanting them to areas of suitable 
habitat with low populations; 
the availability of the species and the 
cost of acquisition for restocking 
purposes; 

the cost of those species which, when 
released, have a probability of 
survival in the wild; 



(I) the ratio between the natural life 
expectancy of the species and the 
period of its probable survival when, 
having been reared in a hatchery, it is 
released to the wild. 
Id) Replacement costs will be assessed for the 
following fish: 



IB 
12) 
13) 
14) 
15) 
16) 
01 
18) 
19) 
(10) 

HI) 
(12) 
(13) 
(14) 
(15) 
(16) 
(17) 
(18) 
(19) 
(20) 
(21) 
(22) 



Alewife (River Herring); 

Amberjacks; 

Anglerfish (Goosefish); 

Bluefish; 

Bonito; 



Butterfish; 

Car p; 

Catfishes; 

Cobia; 

Croaker. Atlantic; 

Cutlassfish. Atlantic; 

Dolphinfish; 

Drum, Black; 



Drum, Red (Channel Bass); 

Eels; 

Flounders; 

Garfish; 

Gizzard Shad; 

Groupers; 

Grunts; 

Hakes; 

Harvestfish; 



9:13 



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October 3, 1994 



993 



PROPOSED RULES 



(23) 
(24) 
(25) 
(26) 
(27) 
(28) 
(29) 



(30) 
(31) 
(32) 
(33) 
(34) 
(35) 
(36) 
(37) 
(38) 
(39) 
(40) 
(41) 
(42) 
(43) 
(44) 
(45) 
(46) 
(47) 
(48) 
(49) 
(50) 
{51} 
(52) 
(53) 
(54) 
(55) 
(56) 
(57) 
(58) 
(59) 
(60) 
(61) 
(62) 
(63) 
(64) 
(65) 
(66) 
(67) 
(68) 
(69) 
(70) 
(71) 
(72) 
(73) 
(74) 
{e} Cost 

ID 



Herring, Thread; 

Hickory Shad; 

Hogfish; 

Jacks; 

Kingfishes (Sea Mullet); 

Mackerel, Atlantic; 

Mackerel, King; 

Mackerel, Spanish; 

Menhaden, Atlantic; 

Mullets; 

Perch, White; 

Pigfish; 

Pompano; 

Porgies; 

Scup; 

Sea Basses; 

Seatrout, Spotted; 

Shad (White); 

Sharks; 

Sharks, Dogfish; 

Sheepshead; 

Ski ppers; 

Snappers; 

Spadefish. Atlantic; 

Spot; 

Striped Bass; 

Shellfishes (Puffers); 

Swordfish; 

Tilefish; 



Triggerfish; 

Tuna; 

Wahoo; 

Weakfish (Grey Trout); 

Whiting; 

Wreckfish; 

Unclassified Fish; 

Brown Shrimp; 

Pink Shrimp; 

Rock Shrimp; 

White Shrimp; 

Unclassified Shrimp; 

Clam, Hard; 

Conchs; 

Crabs, Blue, Hard; 

Crabs, Blue, Soft; 

Octopus; 

Oyster, Fall; 

Scallop, Bay; 

Scallop, Calico; 

Scallop, Sea; 

Squid; 

Unclassified Shellfish. 



G.S. 143-215.3(a)(7) or by court order 
for the purpose of determining the cost 
of replacement of marine and estuarine 
resources which have been killed, 
taken, injured, removed, harmfully 
altered, damaged, or destroyed, the 
factors to be considered in determining 
the cost of the investigation are as 
follows: 

(A) the time expended by the employee or 
employees making the investigation, 
including travel time between the 
place of usual employment and the 
site of the investigation, and the time 
required in formulating and rendering 
the report; 

(B) the cost of service to the state of each 
employee concerned, including annual 
salary, hospitalization insurance, and 
the state's contribution to social 
security taxes and to the a pplicable 
retirement system; 

subsistence of the investigating 
personnel, including meals, 
reasonable gratuities, and lodging 
away from home, when required; 
the cost of aj_l necessary 
transportation; 
the use or rental of boats and motors, 



(D) 
IE} 



of Investigations: 

Factors to be Considered, Upon any 



investigation required as provided by 



when required; 

the cost of cleaning or repairing any 
uniform or clothing that may be 
damaged, soiled or contaminated by 
reason of completing the 
investigation; 
(G) the cost of necessary telephonic 

communications; 

(H) any other expense directly related to 

and necessitated by the investigation. 

(2) Computation of Costs. In assessing the 

cost of time expended in completing the 

investigation, the time expended by 

each person required to take part in the 

investigation shall be recorded in hours, 

the value of which shall be computed 

according to the ratio between the 

annual cost of service of the employee 

and his total annual working hours 

(2087 hours reduced by holidays. 

annual leave entitlement, and earned 

sick leave) . Other costs shall be 

assessed as follows: 

(A) subsistence: the per diem amount for 

meals, reasonable gratuities, and 

lodging away from home, not to 



994 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



exceed the then current maximum per 
diem for state employees; 

(B) transportation: total mileage by 
motor vehicle multiplied by: 

£i) the then current rate per mile for 
travel by state-owned vehicle; or 

(ii) the then current rate per mile for 
travel by privately owned vehicle, 
as applicable; 

(C) boat and motor: ten dollars ($10.00) 
per hour; 

(D) uniform and clothing cleaning and 
repair: actual cost; 

(E) telephonic communications: actual 
cost; 

(F) other expenses: actual cost. 

Statutory Authority G.S. 113-134; 113-267; 143B- 
289.4. 

.0016 CORAL AND LIVE ROCK 

£a] It is unlawful to harvest or possess aboard a 
vessel coral or live rock as defined in 15A NCAC 
31 .0001 (24) and (25). 

(b) Live rock and coral 



shall be returned 



immediately to the waters where taken. 

Statutory Authority G.S. 113-134; 113-182; 143B- 
289.4. 

SUBCHAPTER 3J - NETS, POTS, 

DREDGES, AND OTHER FISHING 

DEVICES 

SECTION .0100 - NET RULES, GENERAL 

.0106 CHANNEL NETS 

(a) It is unlawful to use a channel net: 

(1) Until the Fisheries Director specifies by 
proclamation, time periods and areas 
for the use of channel nets and other 
fixed nets for shrimping. 

(2) Without yellow light reflective tape on 
the top portion of each staff or stake 
and on any buoys located at either end 
of the net. 

(3) With any portion of the set including 
boats, anchors, cables, ropes or nets 
within 50 feet of the center line of the 
Intracoastal Waterway Channel. 

(4) In the middle third of any navigation 
channel marked by Corps of Engineers 
and/or U.S. Coast Guard. With any 
portion of the net including buoys, 
within any navigational channel marked 



by State or Federal agencies. 
(5) Unless attended by the fisherman who 
shall be no more than 50 yards from 
the net at all times. 

(b) It is unlawful to use or possess aboard a 
vessel any channel net with a corkJine exceeding 
40 yards. 

(c) It is unlawful to leave any channel net, 
channel net buoy, or channel net stakes in coastal 
fishing waters from December 1 through March 1. 

(d) It is unlawful to use floats or buoys of 
metallic material for marking a channel net set. 

(e) From March 2 through November 30, cables 
used in a channel net operation shall, when not 
attached to the net, be connected together and any 
attached buoy shall be connected by non-metal 
line. 

(f) It is unlawful to leave channel net buoys in 
coastal fishing waters without yellow light 
reflective tape on each buoy and without the 
owner's identification being clearly printed on each 
buoy. Such identification must include one of the 
following: 

(1) Owner's N.C. motorboat registration 
number; or 

(2) Owner's U.S. vessel documentation 
name; or 

(3) Owner's last name and initials. 

(g) It is unlawful to use any channel nets, 
anchors, lines, or buoys in such a manner as to 
constitute a hazard to navigation. 



Statutory Authority G. S. 
143B-289.4. 



113-134; 113-182; 



SECTION .0400 - FISHING GEAR 

.0401 FISHING GEAR 

(a) The Fisheries Director may, by 
proclamation, close the areas described in 
Paragraph (b) of this Rule to the use of specific 
fishing gear. 

(b) It is unlawful to use fishing gear as specified 
by proclamation at the time and dates specified in 
the proclamation between the Friday before Easter 
through December 31 in the following areas when 
such areas have been closed by proclamation: 

(1) All or part of the Atlantic Ocean, up to 
one-half mile from the beach; 

(2) Up to one-half mile in all directions of 
Oregon Inlet; 

(3) Up to one-half mile in all directions of 
Hatteras Inlet; 

(4) Up to one-half mile in all directions of 
Ocracoke Inlet; 



9:13 



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October 3, 1994 



995 



PROPOSED RULES 



(5) Up to one-half mile of the Cape 
Lookout Rock Jetty; 

(6) Up to one-half mile in all directions of 
fishing piers open to the public; 

(7) Up to one-half mile in all directions of 
State Parks; 

(8) Up to one-half mile of marinas as 
defined by the Coastal Resources 
Commission. 

(c) The Fisheries Director shall specify in the 
proclamation the boundaries of the closure through 
the use of maps, legal descriptions, prominent 
landmarks or other permanent type markers. 

(d) The Fisheries Director shall hold a public 
meeting in the affected area before issuance of 
proclamations authorized by this Rule. 

(e) This Rule will be in effect until July 1 , 499S 
1996 . 

Statutory Authority G.S. 113-133; 113-134; 
113-182; 113-221; 143B-289.4. 

SUBCHAPTER 3M - FESfFISH 

SECTION .0500 - OTHER FEVFISH 

.0504 TROUT 

(a) Spotted seatrout (speckled trout). It is 
unlawful to possess spotted seatrout less than 12 
inches in length. 

(b) Weakfish (gray trout). The Fisheries 
Director may, by proclamation, impose any or all 
of the following restrictions on the taking of 
weakfish: 



(1) 


Specify areas, 








(2) 


Specify seasons, 








(3) 


Specify quantity, 








.4, 


Specify means/methods. 








(5) 


Specify size, but : 








£A1 


But not greater than 


12 


inches 


for 




weakfish taken by any 


method other 




than hook and line; 








ifi) 


But not greater than 


14 


inches 


for 




weakfish taken by hook and line. 




Statutory 


Authority G.S. 113-134; 


113-182; 


143B-289.4. 









.0513 RIVER HERRING AND SHAD 

It is unlawful to take blueback herring, alewife, 
American shad and hickory shad by any method 
from April 15 through January _L 



Statutory Authority G. S. 
113-221; 143B-289.4. 



113-134; 113-182; 



SUBCHAPTER 30 - LICENSES, 
LEASES, AND FRANCHISES 

SECTION .0100 - LICENSES 

.0110 VESSEL LICENSE TRANSFER 

(a) A currently valid vessel license may be 
transferred from one vessel to another vessel 
purchased by the owner upon the surrender of the 
license receipt and decal from the originally 
licensed vessel to the license agent and purchase of 
a vessel license for the new vessel at full cost. All 
other requirements for purchasing a vessel license 
apply to this transaction. 

(b) Upon transfer of ownership of a vessel 
bearing a current valid vessel license, a vessel 
license may be transferred from the previous 
owner to the new owner by completing the 
ownership transfer section on the gold colored 
license receipt. Proof that vessel ownership has 
been transferred to the new owner is required. 
Proof may include a notarized bill of sale or a 
vessel registration transfer or documentation 
transfer. 

Statutory Authority G.S. 113-134; 113-153.1; 
143B-289.4; 1993 (Regular Session 1994), c. 576, 
s. 3. 

SECTION .0200 - LEASES AND 
FRANCHISES 

.0201 STANDARDS FOR SHELLFISH 

BOTTOM AND WATER COLUMN 
LEASES 

(a) All areas of the public bottoms underlying 
coastal fishing waters shall: 

(1) Meet the following standards in 
addition to the standards in G.S. 
1 13-202 in order to be deemed suitable 
for leasing for shellfish purposes: 

(A) The lease area must not contain a 
natural shellfish bed which is defined 
as ten bushels or more of shellfish per 
acre. 

(B) The lease area must not be closer than 
100 feet to a developed shoreline. In 
an area bordered by undeveloped 
shoreline, no minimum setback is 
required. When the area to be leased 
borders the applicant's property or 
borders the property of riparian 
owners who have consented in a 
notarized statement, the Secretary 
may reduce the distance from shore 



996 



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October 3, 1994 



PROPOSED RULES 



required by this Rule. 
(C) Unless the applicant can affirmatively 
establish a necessity for greater 
acreage through the management plan 
that is attached to the application and 
other evidence submitted to the 
Secretary, the lease area shall not be 
less than one-half acre and shall not 
exceed: 
(i) 10 acres for oyster culture; 
(ii) 5 acres for clam culture; or 
(iii) 5 acres for any other species. 
This Section shall not be applied to reduce any 
holdings as of July 1, 1983. 

(2) Produce and market 25 bushels of 
shellfish per acre per year to meet the 
minimum commercial production 
requirement or plant 25 bushels of 
cultch or seed shellfish per acre per 
year as — determine d — by — Division 
biologists to meet commercial 
production by planting effort. Planting 
effort will be considered in lieu of 
commercial production for five 
consecutive years beginning March 1, 
1994, or for the first five consecutive 
years for any lease granted after March 
1, 1994. 

(A) Only shellfish planted, produced or 
marketed according to the definitions 
in 15A NCAC 31 .0001 (26). (271 and 
(28) shall be submitted on 
production/utilization forms for 
shellfish leases and franchises. 

(B) If more than one shellfish lease or 
franchise is used in the production of 
shellfish, one of the leases or 
franchises used in the production of 
the shellfish must be designated as the 
producing lease or franchise for those 
shellfish. Each bushel of shellfish can 
be produced by only one shellfish 
lease or franchise. Shellfish 
transplanted between leases or 
franchises can be credited as planting 
effort on only one lease or franchise- 
Production and marketing information 
and planting effort information are 
compiled and averaged separately to 
assess compliance with the standards. 
The lease or franchise must meet 
either the production requirement or 
the planting effort requirement within 
the dates set forth to be judged in 
compliance with these standards. 



IQ 



(D) In determining production and 
marketing averages and planting effort 
averages for information not reported 
in bushel measurements, the following 
conversion factors will be used: 

(j) 300 oysters, 400 clams, or 400 
scallops equal one bushel; 

(ii) 40 pounds of scallop, 60 pounds 
of oyster, 75 pounds of clam and 
90 pounds of fossil stone equal 
one bushel. 

(E) In the event that a portion of an 
existing lease or franchise is obtained 
by a new owner, the production 
history for the portion obtained will 
be a percentage of the originating 
lease or franchise production equal to 
the percentage of the area of lease or 
franchise site obtained to the area of 
the originating lease or franchise. 

(F) All bushel measurements will be in 
U.S. Standard Bushels. 

(b) Water columns superjacent to leased bottoms 
shall meet the standards in G.S. 113-202.1 in 
order to be deemed suitable for leasing for 
aquaculture purposes. 

(c) Water columns superjacent to duly 
recognized perpetual franchises shall meet the 
standards in G.S. 1 13-202.2 in order to be deemed 
suitable for leasing for aquaculture purposes. 

(d) Water column leases must produce and 
market 100 bushels of shellfish per acre per year 
to meet the minimum commercial production 
requirement or plant 100 bushels of cultch or seed 
shellfish per acre per year as determined by 
Division biologists to meet commercial production 
by planting effort. Planting effort will be 
considered in lieu of commercial production for 
five consecutive years beginning March 1, 1994, 
or for the first five consecutive years for any lease 
granted after March 1, 1994. The rules for 
determining production and marketing averages 
and planting effort averages shall be the same for 
water column leases as for bottom leases and 
franchises set forth in Paragraph (a) of this Rule. 

Statutory Authority G.S. 113-134; 113-201; 
113-202; 113-202.1; 113-202.2; 143B-289.4. 

.0205 LEASE RENEWAL 

(a) Lease renewal applications will be provided 
to lessees as follows: 

(1) For shellfish bottom leases, renewal 
applications will be provided in January 
of the year of expiration. 



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997 



PROPOSED RULES 



(2) For water column leases, renewal 
applications will be provided at least 90 
days prior to expiration dates. 

(b) Lease renewal applications shall be 
accompanied by management plans meeting the 
requirements of 15A NCAC 30 .0202(b). A filing 
fee of fifty dollars ($50.00) shall accompany each 
renewal application for shellfish bottom leases. 

(c) A survey for renewal leases will be required 
at the applicant's expense when the Division 
determines that the area leased to the renewal 
applicant is inconsistent with the survey on file. 

(d) When it is determined, after due notice to 
the lessee, and after opportunity for the lessee to 
be heard, that the lessee has not complied with the 
requirements of this Section or that the lease as 
issued is inconsistent with this Section, the 
Secretary may decline to renew, at the end of the 
current terms, any shellfish bottom or water 
column lease. The lessee may appeal the 
Secretary's decision by initiating a contested case 
as outlined in 15A NCAC 3P .0002. 

(e) Pursuant to G.S. 113-202(a)(6), the 
Secretary is not authorized to recommend approval 
of renewal of a shellfish lease in an area closed to 
shellfishing by reason of pollution. Shellfish 
leases partially closed due to pollution must be 
amended to exclude the area closed to shellfishing 
prior to renewal. For th« purposes of this 
Paragraph lease renewal determinations , an area 
will be considered closed to s hellfishing shellfish 
harvest by reason of pollution when the area has 
been classified by the State Health Director as 
prohibited or has been closed for more than 50 
percent of the days during the final four years 
prior to renewal for four or more consecutive 
year s prior to renewal upon recommendation by 
the State Health Director, except shellfish leases in 
areas which have been clo s ed for four or more 
year s and continue to meet established production 
requirements by sale of shellfish through relay 
periods or other depuration methods s hall not be 
considered closed due to pollution for renewal 
purpo s e s. 

(f) If the Secretary declines to renew a lease that 
has been determined to be inconsistent with the 
standards of this Section, the Secretary, with the 
agreement of the lessee, may issue a renewal lease 
for all or part of the area previously leased to the 
lessee that contains conditions necessary to con- 
form the renewal lease to the minimum require- 
ments of this Section for new leases. 

Statutory Authority G.S. 113-134; 113-201; 
113-202; 113-202.1; 113-202.2; 143B-289.4. 



.0208 CANCELLATION 

(a) In addition to the grounds established by 
G.S. 113-202, the Secretary will begin action to 
terminate leases and franchises for failure to 
produce and market shellfish or for failure to 
maintain a planting effort of cultch or seed 
shellfish at the following rates: 

(1) For shellfish bottom leases and fran- 
chises, 25 bushels per acre per year. 

(2) For water column leases, 100 bushels 
per acre per year. 

These production and marketing rates will be 
averaged over the most recent three-year period 
after January 1 following the second anniversary of 
initial bottom leases and recognized franchises and 
throughout the terms of renewal leases. For water 
column leases, these production and marketing 
rates will be averaged over the first five year 
period for initial leases and over the most recent 
three year period thereafter. Three year averages 
for production and marketing rates will be comput- 
ed irrespective of changes of ownership of the 
shellfish lease or franchise. 

(b) Action to terminate a shellfish franchise shall 
begin when there is reason to believe that the 
patentee, or those claiming under him, have done 
or omitted an act in violation of the terms and 
conditions on which the letters patent were grant- 
ed, or have by any other means forfeited the 
interest acquired under the same. The Division 
shall investigate all such rights issued in perpetuity 
to determine whether the Secretary should request 
that the Attorney General initiate an action pursu- 
ant to G.S. 146-63 to vacate or annul the letters 
patent granted by the state. 

(c) Action to terminate a shellfish lease or 
franchise shall begin when the Fisheries Director 
has cause to believe the holder of private shellfish 
rights has encroached or usurped the legal rights of 
the public to access public trust resources in 
navigable waters. 

(d) In the event action to terminate a lease is 
begun, the owner shall be notified by registered 
mail and given a period of 30 days in which to 
correct the situation. Petitions to review the 
Secretary's decision must be filed with the Office 
of Administrative Hearings as outlined in 15A 
NCAC 3P .0002. 

(e) The Secretary's decision to terminate a lease 
may be appealed by initiating a contested case as 
outlined in 15A NCAC 3P .0002. 

Statutory Authority G.S. 113-134; 113-201; 
113-202; 113-202.1; 113-202.2; 143B-289.4. 



998 



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PROPOSED RULES 



****************** 

Notice is hereby given that the Marine Fisheries 
Commission has rescheduled the hearing date for 
the hearing to be heard in Wilmington that was 
noticed in Register, Issue 11 on September 1 , 1994 
(9:11 NCR 820-825) for the adoption of rules cited 
as 15A NCAC 30 .0301 - .0310. All other sched- 
uled hearings throughout the State published in the 
notice on September 1 , 1994 remain the same as 
published. 



A he proposed effective date of this action 
January 1, 1995. 



is 



Ihe public hearing published for November 10, 
1994 has been rescheduled and will be conducted 
at 7:00 p. m. on November 17, 1994 at the Univer- 
sity of North Carolina, Morton Hall, Randall 
Street, Lot G, Wilmington, North Carolina. 

Keason for Proposed Action: 
15A NCAC 30 .0301 - APPEALS PANEL MEM- 
BERS AND CHAIR; allows for designees in place 
of Chair of Marine Fisheries Commission and 
Director of the Division of Marine Fisheries. 
Requires appointment of such designees within 
specified timeframe. Sets up procedures for 
attendance and requires quorum. 
15A NCAC 30 .0302 - APPEALS PANEL MEET- 
INGS; schedules meetings for set dates. Outlines 
methods of presentations for petitioners. 
15A NCAC 30 .0303 - APPEAL PETITION AND 
OTHER EVIDENCE; outlines criteria for contents 
in petitions, where to submit petitions, time limit 
for Division of Marine Fisheries to make recom- 
mendation and time limit for responding to such 
recommendation. 

15A NCAC 30 .0304 - CONSIDERATION OF 
APPEAL PETITIONS; outlines timeframe for 
considering petitions, information to be considered 
in the petition, and how to settle votes that are 
tied. 

15A NCAC 30 .0305 - EMERGENCY LICENSES; 
outlines criteria for issuance of 30 days emergency 
license. 

ISA NCAC 30 .0306 - HARDSHIP LICENSES; 
outlines criteria for issuance of a hardship license. 
15A NCAC 30 .0307 - APPEALS PANEL FINAL 
DECISION; outlines procedures for issuance or 
denials of an approved emergency or hardship 
license. 



15A NCAC 30 .0308 - OFFICIAL RECORD; 
outlines what shall be the official record of the 
decision. 

ISA NCAC 30 .0309 - REASONS FOR REVOCA- 
TION; sets forth reasons for revoking emergency 
or hardship licenses. 

15A NCAC 30 .0310 - TEMPORARY EMERGEN- 
CY VESSEL CRAB LICENSE; outlines procedures 
and reasons for issuance of emergency vessel crab 
licenses. 

K^omment Procedures: Comments and statements, 
both written and oral, may be presented at the 
hearings. Written comments are encouraged and 
may be submitted to the Marine Fisheries Commis- 
sion, P.O. Box 769, Morehead City, NC 28557. 
These written and oral comments must be received 
no later than 10:00 a.m., December 1, 1994. 
Oral presentation lengths may be limited depend- 
ing on the number of people that wish to speak at 
the public hearings. 

****************** 

Notice is hereby given in accordance with GS. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rules cited 
as 15A NCAC 10F .0319 and .0332. 

Ihe proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on October 20, 1994 at the Archdale Build- 
ing, 512 N. Salisbury Street, 3rd Floor Conference 
Room, Raleigh, NC 27604-1188. 

ixeason for Proposed Action: 

15A NCAC 10F .0319 - To establish a no-wake 

zone on Conaby Creek beginning at the N. C. 45 

Bridge and continuing eastward 1000 feet on 

Conaby Creek. 

15 A NCAC 10F .0332 - To establish a no-wake 

zone on Lake Hickory 50 yards from the southeast 

end of the marina at Rink Dam and extending to 

Rink Dam in Alexander County. 

Lsomment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record hearing will 
be open for receipt of written comments from 



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999 



PROPOSED RULES 



10/2/94 to 11/3/94. Such written comments must 
be delivered or mailed to the N. C. Wildlife Re- 
sources Commission, 512 N. Salisbury Street, 
Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER 10F - MOTORBOATS 
AND WATER SAFETY 

SECTION .0300 - LOCAL WATER 
SAFETY REGULATIONS 



or while on the waters of the any regulated area 
areas designated in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Alexander County 
is designated a suitable agency for placement and 
maintenance of the markers implementing this 
Rule, subject to the approval of the United States 
Coast Guard and the United States Army Corps of 
Engineers, if applicable. 

Statutory Authority G.S. 75A-3; 75A-15. 

****************** 



.0319 WASfflNGTON COUNTY 

(a) Regulated Area Areas . This Rule applies to 
the following waters and portions of waters: that 
portion of Mackey' s Creek which lies between a 
point 150 yards upstream from the center of SR 
1321, where said road dead ends on the eastern 
shore of the creek, to a point 150 yards down 
stream from the center of SR 1321 . 

(1) that portion of Mackey's Creek which 
lies between a point 150 yards upstream 
from the center of SR 1321, where said 
road dead ends on the eastern shore of 
the creek, to a point 150 yards down- 
stream from the center of SR 1321. 

(2) that portion of Conaby Creek beginning 
at the N.C. 45 Bridge and continuing 
eastward north northeast 1000 feet. 

(b) Speed Limit. No person shall operate any 
motorboat or vessel at greater than no-wake speed 
in the regulated area described in Paragraph (a) of 
this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Washington 
County is designated a suitable agency for place- 
ment and maintenance of the markers implement- 
ing this Rule, subject to the approval of the United 
States Coast Guard and the United States Army 
Corps of Engineers. 

Statutory Authority G.S. 75A-3; 75A-15. 

.0332 ALEXANDER COUNTY 

(a) Regulated Area. This Rule applies only to 
those waters of Lake Hickory set out in this Rule 
which are located in Alexander County^ the 
waters beginning 50 yards from the southeast end 
of the marina and ending at Rink Dam . 

(b) Speed Limit. No person shall operate any 
motorboat or vessel at greater than no-wake speed 
within 50 yards of Taylorsvillc Beach Marina or 
within 50 yards of any public boat launching ramp 



iSotice is hereby given in accordance with G.S. 
150B-21. 2 that the EHNR - Commission for Health 
Services intends to amend rules cited as 15A 
NCAC 13A .0011 and .0012. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 1:30 
p.m. on October 20, 1994 at the Groundfloor 
Hearing Room, Archdale Building, 512 N Salis- 
bury Street, Raleigh, N. C. 

IVeason for Proposed Action: To incorporate by 
reference federal rules which were promulgated 
between May 24, 1993 and June 30, 1994 which 
are needed to remain in compliance with EPA 
authorization requirements. Delete Paragraph (c) 
of 15 A NCAC 13 A .0011 provisions which were 
replaced in 15 A NCAC 13 A .0018. Amend 15A 
NCAC 13 A .0012 to include 40 CFR 268.37 Waste 
Specific Provisions. 

Comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Grady L. 
Balentine, Department of Justice, PO Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by November 2, 1994. Persons 
who wish to speak at the hearing should contact 
Mr. Balentine at (919) 733-4618. Persons who 
call in advance of the hearing will be given 
priority on the speaker's list. Oral presentation 
lengths may be limited depending on the number of 
people that wish to speak at the public hearing. 
Only persons who have made comments at a public 
hearing or who have submitted written comments 



1000 



9:13 



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October 3, 1994 



PROPOSED RULES 



will be allowed to speak at the Commission 
meeting. Comments made at the Commission 
meeting must either clarify previous comments or 
proposed changes from staff pursuant to comments 
made during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
RULES AT THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21.2(f). 

CHAPTER 13 - SOLID WASTE 
MANAGEMENT 

SUBCHAPTER 13A - HAZARDOUS 
WASTE MANAGEMENT 



£f) (g) Appendices to 40 CFR Part 266 have 
been incorporated by reference including subse- 
quent amendments and editions. 

Statutory Authority G.S. 130A-294(c); 150B-21.6. 

.0012 LAND DISPOSAL RESTRICTIONS 
- PART 268 

(a) 40 CFR 268.1 through 268.14 (Subpart A), 
"General", have been incorporated by reference 
including subsequent amendments and editions. 

(b) 40 CFR 268.30 through 26 8 .36 268.37 
(Subpart C), "Prohibitions on Land Disposal", 
have been incorporated by reference including 
subsequent amendments and editions. 

(c) 40 CFR 268.40 through 268.46 (Subpart D), 
"Treatment Standards", have been incorporated by 
reference including subsequent amendments and 
editions. 

(d) 40 CFR 268.50 (Subpart E), "Prohibitions 
on Storage", has been incorporated by reference 
including subsequent amendments and editions. 

(e) Appendices to 40 CFR Part 268 have been 
incorporated by reference including subsequent 
amendments and editions. 



.0011 STDS FOR THE MGMT OF SPECIFIC 
HW/TYPES HWM FACILITIES - 
PART 266 

(a) 40 CFR 266.20 through 266.23 (Subpart C), 
"Recyclable Materials Used in a Manner 
Constituting Disposal", have been incorporated by 
reference including subsequent amendments and 
editions. 

(b) 40 CFR 266.30 through 266.35 (Subpart D), 
"Hazardous Waste Burned for Energy Recovery", 
have been incorporated by reference including 
subsequent amendments and editions. 

(c) 4 CFR 266. 4 through 266. 44 (Subpart E), 
"Used Oil Burned for Energy Recovery", have 
been incorporated by reference including sub s c 
qucnt amendments and editions. 

M <d) 40 CFR 266.70 (Subpart F), "Recyclable 
Materials Utilized for Precious Metal Recovery", 
has been incorporated by reference including 
subsequent amendments and editions. 

{d} <e) 40 CFR 266.80 (Subpart G), "Spent 
Lead-Acid Batteries Being Reclaimed", has been 
incorporated by reference including subsequent 
amendments and editions. 

{el & 40 CFR 266.100 through 266.122 (Sub- 
part H), "Hazardous Waste Burned in Boilers and 
Industrial Furnaces", have been incorporated by 
reference including subsequent amendments and 
editions. 



Statutory Authority G.S. 130A-294(c); 150B-21.6. 

jyiotice is hereby given in accordance with G.S. 
150B-2 1.2 that the EHNR - Commission for Health 
Services intends to amend rules cited as ISA 
NCAC 18A .2801, .2803 - .2804, .2806 - .2810, 
.2812 - .2824, .2826 - .2830, .2833 and .2834. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 1:30 
p.m. on October 20, 1994 at the Groundfloor 
Hearing Room, Archdale Building, 512 N. Salis- 
bury Street, Raleigh, NC 

LVeason for Proposed Action: The Child Day 
Care Rules as promulgated in 1991 , were a com- 
pletely rewritten set of rules. Some rules have 
been unclear or are now inconsistent with the 
Division of Child Development name and rules. 
The amendments seek to clarify portions of the rule 
that appeared unclear, to standardize terms with 
those used in other rules of the Section and the 



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1001 



PROPOSED RULES 



Division of Child Development to develop rules for 
infant and toddler feeding areas within child care 
rooms. 

Lsomment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Grady L. 
Balentine, Department of Justice, PO Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by November 2, 1994. Persons 
who wish to speak at the hearing should contact 
Mr. Balentine at (919) 733-4618. Persons who 
call in advance of the hearing will be given priori- 
ty on the speaker 's list. Oral presentation lengths 
may be limited depending on the number of people 
that wish to speak at the public hearing. Only 
persons who have made comments at a public 
hearing or who have submitted written comments 
will be allowed to speak at the Commission meet- 
ing. Comments made at the Commission meeting 
must either clarify previous comments or proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTEREST- 
ED AND POTENTIALLY AFFECTED PERSONS, 
GROUPS, BUSINESSES, ASSOCIATIONS, INSTI- 
TUTIONS OR AGENCIES MAKE THEIR VIEWS 
AND OPINIONS KNOWN TO THE COMMISSION 
FOR HEALTH SERVICES THROUGH THE PUB- 
LIC HEARING AND COMMENT PROCESS, 
WHETHER THEY SUPPORT OR OPPOSE ANY 
OR ALL PROVISIONS OF THE PROPOSED 
RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE 
COMMISSION MEETING IF THE CHANGES 
COMPLY WITH G.S. 150B-21.2(f). 

CHAPTER 18 - ENVIRONMENTAL 
HEALTH 

SUBCHAPTER 18 A - SANITATION 

SECTION .2800 - SANITATION OF 
CHILD DAY CARE FACILITIES 

.2801 DEFINITIONS 

The following definitions shall apply throughout 
this Section: 

(1) "Adequate" means determined by the 
Department to be of sufficient size, 
volume, or technical specifications, to 
effectively accommodate and support the 



planned, current, or projected workloads 
for a specified operational area. 

(2) "Approved" means procedures and 
equipment determined by the Department 
to be in compliance with this Section. 
Food service Equipment equipment and 
utensils which meet and are installed in 
accordance with National Sanitation 
Foundation (NSF) or equivalent standards 
or equal shall be considered as approved. 
The NSF standards are hereby adopted 
incorporated by reference in accordance 
with G.S. — 150B 1 4 (c). including any 
subsequent amendments and editions. 
This material is available for inspection 
at the Department of Environment. 
Health, and Natural Resources, Division 
of Environmental Health, 1330 St 
Mary's Street, Raleigh, North Carolina. 
Copies may be obtained from the Nation- 
al Sanitation Foundation, P.O. Box 
13014, Ann Arbor, Michigan, 48113- 
0140 at a cost of three hundred twenty- 
five dollars ($325.00). 

{3) "Child Day Care Section" — means the 
Child Day Care Section of the North 
Carolina Department of Human Rcsourc- 
esr 

(3) {4) "Communicable Condition" means the 
state of being infected with a communica- 
ble agent but without symptoms. 

(4) (§)"Communicable Disease" means any 
disease that can be transmitted from one 
person to another directly, by contact 
with excrement, other body fluids, or 
discharges from the body; or indirectly, 
via substances or inanimate objects, such 
as contaminated drinking glasses, toys or 
water; or via vectors, such as flies, mos- 
quitoes, ticks, or other insects. 

£5} ^"Department" or "DEHNR" means the 
N.C. Department of Environment, 
Health, and Natural Resources. The 
term also means the authorized represen- 
tative of the Department. 

(6) "Division of Child Development" means 
the Division of Child Development of the 
N.C. Department of Human Resources. 

(7) "Eating and Cooking Utensils" means 
and includes any kitchenware, tableware, 
glassware, cutlery, utensils, containers, 
or other equipment with which food or 
drink comes in contact during storage, 
preparation, or serving. 

(8) "Environmental Health Specialist" means 



1002 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



a person authorized to represent the 
Department. 

(9) "Food" means any raw, cooked, or 
processed edible substance, ice, 
beverage, or ingredient used or intended 
for use or for sale in whole or in part for 
human consumption. 

(10) "Hermetically Sealed" means a container 
designed and intended to be secure 
against the entry of microorganisms and 
to maintain the commercial sterility of its 
contents after processing. 

(11) "Hygroscopic Food" means food which 
readily takes up and retains moisture, 
such as bean sprouts. 

(12) "Impervious" means that which will not 
allow entrance or passage, such as an 
airtight plastic container that will not 
allow the entrance of moisture or vermin. 

(13) "Potable Water" means water from an 
approved source which is suitable for 
drinking. 

(14) "Potentially Hazardous Food" means any 
food or ingredient, natural or synthetic, 
in a form capable of supporting the 
growth of infectious or toxigenic 
microorganisms, including Clostridium 
botulinum. This term includes raw or 
heat treated food of animal origin, raw 
seed sprouts, and treated foods of plant 
origin. The term does not include foods 
which have a pH level of 4.6 or below or 
a water activity (Aw) value of 0.85 or 
less. 

(15) "Putrescible Materials" means materials 
likely to rot or putrefy, such as fruit, 
vegetables, meats, dairy products, or 
similar items. 

(16) "Sanitary Sewage System" means a 
complete system of sewage collection, 
treatment, and disposal and includes 
septic tank systems, connection to a 
public or community sewage system, 
sewage reuse or recycle systems, 
mechanical or biological treatment 
systems, or other such systems. 

(17) "Sanitize" means the approved 
bactericidal treatment by a process which 
provides enough accumulative heat or 
concentration of chemicals for enough 
time — te — reduce — the — bacterial — count, 
including pathogens, to a safe level on 
uten s ils — and — equipment. meets the 
temperature and chemical concentration 
levels in 15A NCAC 18A .2619. 



(18) "Sewage" means the liquid and solid 
human body waste and liquid waste 
generated by water-using fixtures and 
appliances, including those associated 
with foodhandling. The term does not 
include industrial process wastewater or 
sewage that is combined with industrial 
process wastewater. 

(19) "Single-Service Articles" means 
tableware, including flatware and 
hollowware, carry-out utensils and other 
items such as bags, containers, stirrers, 
straws, toothpicks, and wrappers which 
are designed, fabricated and intended by 
the manufacturer for one-time use. 

(20) "Single-Use Articles" means bulk food 
containers and utensils intended by 
manufacturer to be used once and 
discarded. The term includes items such 
as formed buckets, bread wrappers, 
pickle barrels, and No. 10 cans. The 
term does not include "single-service 
articles" as defined in this Section. 

Statutory Authority G.S. 110-91. 

.2803 INSPECTIONS AND REPORTS 

(a) Unannounced inspections of child day care 
facilities shall be made by an Environmental 
Health Specialist at least twice a year beginning 
January 1, 1992. once each six months. Prior to 
that date, each facility shall be inspected at least 
annually. An original and two copies of the 
Sanitation Standards Evaluation Form for Day 
Care Facilities shall be completed by the 
Environmental Health Specialist. The original 
shall be submitted to the Child Day Care Section 
Division of Child Development by the 
Environmental Health Specialist. The facility 
operator and the Environmental Health Specialist 
shall each retain a copy. 

(b) If conditions found at the environmental 
health specialist determines that conditions found 
at the facility at the time of any inspection are 
dangerous to the health of the children, the 
Environmental Health Specialist shall notify the 
Child — Day — Care — Section Division of Child 
Development within 24 hours by verbal contact. 
The original of the inspection report documenting 
the dangerous conditions shall be sent to the Child 
Day Care Section Division of Child Development 
within two working days following the inspection. 

(c) An Environmental Health Specialist may 
conduct an inspection of any child day care facility 
as frequently as necessary in order to ensure 



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1003 



PROPOSED RULES 



compliance with applicable sanitation standards. 
Statutory Authority G.S. 110-91. 

.2804 FOOD SUPPLIES 

(a) Food shall be in good condition, free from 
spoilage, filth, or other contamination and shall be 
safe for human consumption. Food shall be 
obtained from sources that comply with all laws 
relating to food and food labeling. The use of 
food packaged in hermetically sealed containers 
that was not prepared in a commercial food 
processing establishment is prohibited. 

(b) Milk products that are used shall be Grade 
"A" pasteurized fluid milk and fluid milk products 
or evaporated milk. The term "milk products" 
means those products as defined in 15A NCAC 
18A t45©7 .1200 . Copies of 15A NCAC 18A 
.1207 . 1200 may be obtained from the 
Environmental Health Services Section, Division 
of Environmental Health, Department of 
Environment, Health, and Natural Resources, P.O. 
Box 27687, Raleigh, North Carolina 27611-7687. 
Unless prescribed by a physician, dry milk and dry 
milk products may be used only for cooking 
purposes, including cooked pudding desserts and 
flavored hot beverages. 

(c) Fresh and frozen shucked shellfish (oysters, 
clams, or mussels) shall be packed in 
nonreturnable packages identified with the name 
and address of the original shell stock processor, 
shucker - packer, or repacker, and the interstate 
certification number issued according to law. 
Shell stock and shucked shellfish shall be kept in 
the container in which they were received until 
they are used. Each container of unshucked shell 
stock (oysters, clams, or mussels) shall be 
identified by an attached tag that states the name 
and address of the original shell stock processor, 
the kind and quantity of shell stock, and an 
interstate certification number issued by the State 
or foreign shellfish control agency. After each 
container of shellstock has been emptied, the 
management shall remove the stub of the tag and 
retain it for a period of at least 90 days. 

(d) Raw eggs or products containing raw eggs 
shall not be consumed, including raw cookie 
dough, cake batter, brownie mix, milkshakes, ice 
cream and other food products. A pasteurized egg 
product may be used as a substitute for raw eggs. 

(e) Formula, mother's milk, and other bottled 
beverages juiec sent from home shall be fully 
prepared^ dated, and identified for the appropriate 
child at the child's home. All formula, mother's 
milk, and other bottled beverages shall be returned 



to the child's home or discarded at the end of each 
day. Formula and juice provided by the child day 
care facility shall be commercially pre-packaged, 
ready-to-feed, fully prepared, and packaged in 
single-ase service items containers . Further 
However , formula that does not meet these 
requirements and juice may be provided by the 
child day care facility as prescribed by the child's 
physician or instructed by parent or guardian in 
writing . Bottles and other drinking utensils 
provided by the child day care facility shall be 
sanitized in accordance with this Section. AM 
unused formula, mother' s milk, and juice sent 
from home — shall be discarded at the end of each 
dfljfr Formula and other beverages juiec , which 
require refrigeration, baby food, after opening asd 
recovering , and mother's milk shall be identified 
for the appropriate child and shall be refrigerated 
at 45 °F (7°C) or below. Commercially prepared 
baby foods shall be served from a serving dish 
rather than the food jar. Open jars of baby food 
shall be covered, dated, refrigerated, and used 
within 48 hours. However, baby food may be 
served directly from the jar to one child if unused 
portions of the food are discarded after each 
feeding. 

(f) Facilities receiving prepared, ready-to-eat 
meals from outside sources shall use only catered 
meals obtained from a food handling establishment 
permitted or inspected by the a health department. 
During transportation, food shall meet the 
requirements of these Rules relating to food 
protection and storage. 

(g) All bag lunches containing potentially 
hazardous foods shall be refrigerated in accordance 
with this Section. 

Statutory Authority G.S. 110-91. 

.2806 FOOD STORAGE 

(a) Food products shall be stored in approved, 
clean, tightly covered, storage containers once the 
original package is opened. Container covers shall 
be impervious and nonabsorbent. 

(b) Foods not stored in the product container or 
package in which it was obtained, shall be stored 
in a tightly covered, approved food storage 
container identifying the food by common name. 

(c) Food shall be stored above the floor in a 
manner that protects the food from splash and 
other contamination and that permits easy cleaning 
of the storage area. 

(d) Food and containers of food shall not be 
stored under exposed or unprotected sewer lines or 
water lines, except for automatic fire protection 



1004 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



sprinkler heads that may be required by law. 
Food shall not be stored in toilet or laundry 
rooms, hallways, or other areas where there is a 
potential for contamination. 

(e) Food not subject to further washing or 
cooking before serving shall be s tored in a manner 
that protects it from cross contamination. All food 
shall be stored in a manner to protect it from dust, 
insects, drip, splash and other contamination. 

(f) Packaged food such as milk or other fluid 
containers may be stored in undrained ice as long 
as any individual units are not submerged in water. 
Wrapped sandwiches shall not be stored in direct 
contact with ice. 

(g) Refrigerated storage: 

(1) Refrigeration equipment shall be 
provided in such number and of such 
capacity to assure the maintenance of 
potentially hazardous food at required 
temperatures during storage. Each 
refrigerator shall be provided with a 
numerically scaled indicating 
thermometer, accurate to +3° F, ( + 
1.5°C) located to measure the air 
temperature in the warmest part of the 
refrigerator and located to be easily 
readable. Recording thermometers, 
accurate to ±3° F £± 1.5°C) . may be 
used in lieu of indicating thermometers; 

(2) Potentially hazardous food requiring 
refrigeration after preparation shall be 
rapidly cooled to an internal 
temperature of 45 °F or below. 
Potentially — hazardou s foods of large 
volume or prepared in large quantities 
shall be rapidly cooled, utilizing such 
methods Cooling of potentially 
hazardous foods shall be initiated upon 
completion of preparation or a period 
of hot storage. Methods such as shallow 
pans, agitation, quick chilling or water 
circulation external to the food 
containers shall be used to cool large 
quantities of potentially hazardous food. 
Potentially hazardous food to be 
transported cold shall be prechilled and 
held at a temperature of 45 °F (7°C) or 
below; 

(3) Ice used for cooling stored food and 
food containers shall not be used for 
human consumption. 

(h) Hot storage: 
(1) Hot food storage equipment shall be 
provided in such number and of such 
capacity to assure the maintenance of 



food at the required temperature during 
storage. Each hot food unit shall be 
provided with a numerically scaled 
indicating thermometer, accurate to ± 
3° F i± 1.5°C) , located to measure the 
air temperature in the coolest part of 
the unit and located to be easily 
readable. Recording thermometers, 
accurate to ±3° F £±. 1.5°C) . may be 
used in lieu of indicating thermometers. 
Where it is impractical to install 
thermometers on equipment such as 
steam tables, steam kettles, heat lamps, 
cal-rod units, or insulated food 
transport carriers, a metal stem-type 
numerically scaled indicating product 
thermometer shall be available and used 
to check internal food temperature; 
(2) The internal temperature of potentially 
hazardous foods requiring hot storage 
shall be 140° F (60°C) or above except 
during necessary periods of preparation 
and service. Potentially hazardous food 
to be transported hot shall be held at a 
temperature of 140°F (60°C) or 
above. 

Statutory Authority G.S. 110-91. 

.2807 FOOD PREPARATION 

(a) Food shall be prepared with the least 
possible manual contact, with appropriate utensils, 
and on surfaces that have been cleaned, rinsed, 
and sanitized prior to use in order to prevent 
cross-contamination. 

(b) Whenever there is a change in processing 
from raw to ready-to-eat foods, the new operation 
shall begin with food-contact surfaces and utensils 
which are clean and have been sanitized. 

(c) Raw fruits and raw vegetables shall be 
thoroughly washed with potable water before being 
cooked or served. 

(d) Potentially hazardous foods requiring 
cooking shall be cooked to heat all parts of the 
food to a temperature of at least 140°F (60°C) , 
except that: 

(1) Poultry, poultry stuffings, stuffed meats 
and stuffings containing meat shall be 
cooked to heat all parts of the food to 
at least 165°F (74 °C) with no 
interruption of the cooking process; 

(2) Pork and any food containing pork shall 
be cooked to heat all parts of the food 
to at least 165°F (74 °C) with no 
interruption in the cooking process; 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1005 



PROPOSED RULES 



(3) Ground beef and foods containing 
ground beef shall be cooked to an 
internal temperature of at least 155°F 
(68°C); 

(4) Rare roast beef shall be cooked to an 
internal temperature of at least 130°F 
(54"C) with no interruption in the cook- 
ing process. 

(e) Raw animal products cooked in a microwave 
oven shall be rotated during cooking to compensate 
for uneven heat distribution and shall be heated an 
additional 25°F (13.9°C) to compensate for short- 
er cooking times. 

(f) Potentially hazardous foods that have been 
cooked and then refrigerated, if served above 45°F 
(7°C), shall be reheated rapidly to an internal 
temperature of 165°F (74°C) or higher before 
being served or before being placed in a hot food 
storage unit except that, food in intact packages 
from regulated food manufacturing plants may 
initially be reheated to 140°F (60°C). Steam 
tables, warmers, and similar hot food holding units 
are prohibited for the rapid reheating of potentially 
hazardous foods. Potentially hazardous foods 
reheated in a microwave oven shall be heated an 
additional 25°F (13.9°C). 

(g) Metal stem-type numerically scaled indicat- 
ing product thermometers, accurate to +2° F 
(+1°Q , shall be provided and used to assure the 
attainment and maintenance of proper internal 
cooking, holding, or refrigeration temperatures of 
all potentially hazardous foods. 

(h) Potentially hazardous foods shall be thawed: 

(1) In refrigerated units at a temperature 
not to exceed 45 °F (1°C) ; 

(2) Under potable running water of a tem- 
perature of 70 °F (21 °C) or below, with 
sufficient water velocity to agitate and 
float off loose food particles into the 
overflow; 

(3) In a microwave oven only when the 
food will be immediately transferred to 
conventional cooking equipment as part 
of a continuous cooking process or 
when the entire, uninterrupted cooking 
process takes place in the microwave 
oven; or 

(4) As part of the conventional cooking 
process. 

Statutory Authority G.S. 110-91. 

.2808 FOOD SERVICE 

(a) Milk and milk products for drinking purpos- 
es may be served from a commercially filled 



container of not more than one gallon capacity or 
drawn from a commercially filled container stored 
in a mechanically refrigerated bulk milk dispenser. 

(b) Ice, if purchased, shall be purchased from an 
approved source and kept clean. Ice shall be 
made, handled, transported, stored and dispensed 
in such a manner as to be protected against con- 
tamination. Ice shall be dispensed with scoops, 
tongs, or other ice-dispensing utensils or through 
automatic ice-dispensing equipment. 
Ice-dispensing utensils shall be stored on a clean 
surface or in the ice with the dispensing utensil's 
handle extended out of the ice. Between uses, ice 
transfer receptacles shall be stored to in a way that 
protect s protect them from dust, drip, splash and 
other contamination. Ice storage bins shall be 
drained through an air gap. 

(c) Employees preparing food shall have used 
antibacterial soap, dips, or hand sanitizers 
immediately prior to food preparation or shall use 
clean, plastic disposable gloves or sanitized 
utensils during food preparation. This requirement 
is in addition to all handwashing requirements in 
Rule .2828 of this Section. Between uses during 
service, dispensing utensil s shall be stored in the 
food with the dispensing utensil handle extended 
out of the food or stored clean and dry. 

{4) Open jar s of baby food shall be covered, 
dated, refrigerated, and used within 4 8 hours. 

(d)-fe-) Once served, portions of leftover food 
shall not be served again. However, packaged 
food, that is not potentially hazardous and has not 
been opened and is still in sound condition, may 
be re-served. 

(e) Between uses during service, dispensing 
utensils shall be stored in the food with the 
dispensing utensil handle extended out of the food 
or stored clean and dry. 

Statutory Authority G.S. 110-91. 

.2809 FOOD SERVICE EQUIPMENT 
AND UTENSDLS 

(a) Material and Construction: 
(1) Materials used in the construction of 
utensils and equipment shall, under 
normal use conditions, be durable; 
corrosion-resistant; nonabsorbent; non- 
toxic; of sufficient weight and thickness 
to permit cleaning and sanitizing by 
normal warewashing methods; finished 
to have a smooth, easily cleanable 
surface; and resistant to pitting, 
chipping, cracking, scratching, scoring, 
distortion, and decomposition; 



1006 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



(2) Solder shall be comprised of approved, 
non-toxic; corrosion-resistant materials; 

(3) Wood and wicker shall not be used as 
food-contact surfaces, except hard 
maple or an equivalent nonabsorbent 
wood may be used for cutting boards, 
cutting blocks or bakers' tables; 

(4) Galvanized metal shall not be used for 
utensils which have general utility or 
for utensils or food-contact equipment 
which contacts beverages or moist or 
hygroscopic food; 

(5) Linens shall not be used as food-contact 
surfaces, except that clean linen may be 
used in contact with bread and rolls; 

(6) Single-use and single-service articles 
shall be fabricated from approved, 
clean materials; 

(7) Reuse of single-service and single-use 
articles is prohibited; 

(8) Equipment, utensils, and single-service 
articles that impart odors, color or 
taste, or contribute to the contamination 
of food shall not be used. 

(b) Design and Fabrication: 

(1) Equipment and utensils shall be 
designed and fabricated to be durable 
and sufficiently strong to resist denting 
and buckling under normal-use 
conditions; 

(2) Product thermometers and thermometer 
probes shall be of metal stem-type 
construction; 

(3) Multi-use food-contact surfaces shall be 
smooth; free of breaks, open seams, 
cracks, chips, pits and similar 
imperfections; free of sharp internal 
angles, corners and crevices; finished to 
have smooth welds and joints; and 
accessible for cleaning and inspection 
without being disassembled, by 
disassembling without the use of tools 
or by easy disassembling with the use 
of only simple tools such as mallets, 
screw drivers or wrenches which are 
kept near the equipment; 

(4) Water filters or any other water 
conditioning devices shall be designed 
to be disassembled to provide for 
periodic cleaning or replacement of the 
active element; 

(5) Nonfood-contact surfaces shall be 
nonabsorbent, cleanable, and free of 
unnecessary ledges, projections, and 
crevices that obstruct cleaning ; 



(6) Interior surfaces of nonfood-contact 
equipment shall be designed and 
fabricated to allow easy cleaning and to 
facilitate maintenance operations; 

(7) Filters and other grease extracting 
equipment shall be readily accessible 
for filter replacement and cleaning. 

Statutory Authority G.S. 110-91. 

.2810 SPECIFICATIONS FOR KITCHENS, 
BASED ON NUMBER OF CHILDREN 

(a) Day Care Facilities Licensed for or serving 
food to 6 - 34 to 29 Children: 

(1) Domestic kitchen equipment may be 
used. Domestic kitchen equipment 
shall include at least a two-compartment 
sink, and dishwasher, refrigeration 
equipment? and adequate cooking 
equipment. Day care facilities using 
only s ingl e s ervice articles multi-use 
utensils shall also provide at least a 
two compartment sink; a dishwasher. In 
lieu of a dishwasher and 
two-compartment sink, a 
three-compartment sink may be used. 

(2) A separate lavatory for handwashing is 
required in the kitchen food preparation 
areas. If the dishwashing area is 
separate from the food preparation area, 
an additional lavatory shall be required 
in the dishwashing area. This These 
handwashing lavatories shall be used 
only by food service personnel? . 

0) After each use, all multi u s e tableware 

and food contact s urface s of equipment 

and uten s il s shall be washed and rinsed 

in a di s hwasher or three compartment 

sink. — Snnitization s hall then take place 

in the s ink by immersion for at least 

one minute in clean, hot water at least 

170°F or at least two minutes in a clean 

solution containing: 

{A) — At — least — 59 — ports — per- — million — ef 

available chlorine at a temperature of 

at lea s t 75 °F (2 4 °C); 

{B) — At least — 12.5 parts per million of 

available iodine and having a pH not 

higher than 5.0 and at a temperature 

of at least 75°F (2 4 °C); or 

{€) — At least 200 parts per million of 

quaternary ammonium products and 

having a temperature of at least 75 °F 

(2 4 °C), provided that the product is 

labeled to show that it is effective in 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1007 



PROPOSED RULES 



water having a hardnc89 value at least 
equal to that of the water being used. 
(b) Day Care Facilities Licensed for or 
serving food to 35 30 or More Children: 

(1) Kitchen equipment requirements shall 
include the following: 

(A) Commercial — kitchen Only approved 
food service equipment shall be used. 
meeting — NSF — (National — Sanitation 
Foundation) standards, If equipment is 
not National Sanitation Foundation 
listed, the owner or operator shall 
submit documentation to the 
Department that demonstrates that the 
equipment is at least equivalent to 
National Sanitation Foundation 
standards. The Department shall 
determine if the equipment is at least 
©f equivalent to National Sanitation 

Foundation Standards s hall be 

required in day care facilities licensed 
for 25 or more children ; 

(B) Commercial — kitchen Food service 
equipment shall include^ at least a 

three compartment s4«k with 

drainboards, refrigeration equipment, 
and cooking equipment. 

£i) Where meals are prepared, at 
least a three-compartment sink 
with drainboards, refrigeration 
equipment, and cooking 
equipment; 

(ii) Where no meals are prepared and 
only single-service articles are 
used, refrigeration equipment and 
at least a domestic two- 
compartment sink of adequate size 
to clean and sanitize the largest 
utensil shall be required. When a 
domestic sink is used, adequate 
space for air-drying sanitized 
utensils shall be provided. 

(2) A separate food preparation sink with 
drainboard shall be provided for the 
washing and processing of foods except 
where plan review shows that volume 
and preparation frequency do not 
require separate facilities. 

(3) A separate lavatory for handwashing is 
required in the kitchen food preparation 
areas . If the dishwashing area is 
separate from the food preparation area, 
an additional lavatory shall be required 
in the dishwashing area. Thi s These 
handwashing lavatories shall be used 



only by food service personnel. 

(4) Day care facilities u s ing s ingle ocrvioc 

utensils and not preparing food other 
than simple snack3, s hall provide at 
least — a — two compartment — sink- — wkb 
drainboards, — refrigeration — equipment, 
and a s eparate handwashing lavatory. 
(c) If baby food is prepared or stored in the 
infant or toddler area, an infant/toddler food 
service area shall be provided. The infant/toddler 
food service area shall be used exclusively for the 
storage of infant bottles, warming of bottles, 
storage of fully prepared baby foods in their 
containers and the mixing of dry cereals. The 
food preparation counters, bottle warming 
equipment, food and food contact surfaces shall 
not be within reach of children. If only infant 
bottles are stored and warmed or baby food is fed 
directly from individual jars in the infant/ toddler 
food service area, only an adequate refrigerator 
and bottle warming equipment shall be required. 
If fully prepared baby foods are portioned or dry 
cereals are mixed, the infant/ toddler food service 
area shall contain at least an adequate refrigerator, 
bottle warming equipment, an easily cleanable 
counter top and a handwashing lavatory. This 
handwashing lavatory shall be used only for 
infant/toddler food service activities. Domestic 
food service equipment may be used in 
infant/toddler food service areas regardless of day 
care facility size. 

(1) All equipment shall be cleaned at least 
daily. Warming equipment shall be 
cleaned and sanitized as required in 
Rule .2812 or .2813 of this Section. 

(2) After each use, all multi-use eating and 
drinking utensils shall be cleaned and 
sanitized in the day care facility 
kitchen. 

(3) Single-service items shall be handled as 
required in Rule .2814 of this Section. 

(4) Counter, shelf or cabinet space shall be 
provided for food storage. All dry 
cereal shall be stored in closed, labeled 
containers. Food supplies shall be 
stored in accordance with this Section. 

je)(d) Equipment that was installed in a day care 
facility prior to the effective date of these Rulee 
July L, 1991 and that does not meet all the design 
and fabrication requirements of this Section shall 
be deemed acceptable if it is in good repair, 
capable of being maintained in a — sanitary 
condition, accordance with the rules of this Section 
and the food-contact surfaces are nontoxic. This 
shall not apply to equipment required in Paragraph 



1008 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



(c) of this Rule. Replacement equipment and new 
equipment acquired after July L, 1991 the effective 
date of these Rulco shall meet the requirements of 
Paragraphs (a), (b) and (c) of this Section Rule - 
Licensed facilities in operation prior to January L, 
1995, that increase the number licensed for or that 
increase the number of children to whom they 
serve food, shall comply with all the rules of this 
Section. Upon change of ownership, or the clos- 
ing of the operation and the issuance of a new 
license, the day care facility shall comply with all 
the rules of this Section. 

Statutory Authority G.S. 110-91. 

.2812 MANUAL CLEANING AND 
SANITIZING 

(a) For manual washing, rinsing, and sanitizing 
of utensils and equipment, at least a three compart 
ment s ink with dminboards shall be provided and 
used. Sink shall be large enough to accommodate 
all food service utensils involved; and each com 
partment s hall be provided with hot and cold 
water. Day care facilities licensed for or serving 
food to 30 or more children, shall provide and use 
a three-compartment sink with drainboards if 
utensils and equipment are manually cleaned and 
sanitized . 

(b) Day care facilities licensed for or serving 
food to 6 to 29 children may use a domestic 
dishwasher for washing and rinsing of multi-use 
utensils and equipment. Utensils and equipment 
shall then be sanitized in the sink as required in 
Subparagraph (e)(4) of this Rule. Sink compart- 
ments shall be large enough to submerge the 
largest items to be washed and each compartment 
shall be supplied with hot and cold running water. 

(c) fb) Drainboards of adequate size shall be 
provided for proper handling of soiled utensils 
prior to washing and cleaned utensils following 
sanitizing. 

(d) fe) Equipment and utensils shall be pre- 
flushed or prescraped and, when necessary, pre- 
soaked to remove gross food particles and soil. 

(e) (d) Except for fixed equipment and utensils 
too large to be cleaned in sink compartments, 
manual washing, rinsing, and sanitizing shall be 
conducted in the following sequence: 

(1) Sinks shall be cleaned prior to use. 

(2) Equipment and utensils shall be thor- 
oughly washed in the first compartment 
with a hot detergent solution that is 
kept clean. 

(3) Equipment and utensils shall be rinsed 
free of detergent and abrasives with 



clean water in the second compartment. 
(4) The food-contact surfaces of equipment 
and utensils shall be sanitized in the 
third compartment by: 

(A) Immersion for at least one minute in 
clean, hot water at a temperature of at 
least 170°F (77°C) : or 

(B) Immersion for at least two minutes in 
a clean solution containing at least 50 
parts per million of available chlorine 
at a temperature of at least 75 °F 
(24 °C); or 

(C) Immersion for at least two minutes in 
a clean solution containing at least 
12.5 parts per million of available 
iodine and having a pH not higher 
than 5.0 and at a temperature of at 
least 75°F (24°C); or 

(D) Immersion for at least two minutes in 
a clean solution containing at least 
200 parts per million of quaternary 
ammonium products and having a 
temperature of at least 75°F (24°C), 
provided that the product is labeled to 
show that it is effective in water 
having a hardness value at least equal 
to that of the water being used. 

(f) {e) For utensils and equipment which are 
either too large or impractical to sanitize in a 
dishwashing machine or dishwashing sink, a 
spray-on or wipe-on sanitizer shall be used. When 
spray-on or wipe-on sanitizers are used, the chemi- 
cal strengths shall be those required for sanitizing 
multi-use eating and drinking utensils. Spray-on 
or wipe-on sanitizers shall be prepared daily and 
kept on hand for bactericidal treatment. 

(g) (^ When hot water is used for sanitizing, the 
following facilities shall be provided and used: 

(1) An integral heating device or fixture 
installed in, on, or under the sanitizing 
compartment of the sink capable of 
maintaining the water at a temperature 
of at least 170°F (77 °C) ; and 

(2) A numerically scaled indicating ther- 
mometer, accurate to +3° F ( + 
1.5°C) , convenient to the sink for 
frequent checks of water temperature; 
and 

(3) Dish baskets of such size and design to 
permit complete immersion of the 
tableware, kitchenware, and equipment 
in the hot water. 

£h) {g) A s uitable testing method or equipment 
shall be available, convenient, and regularly used 
to test chemical sanitizers to insure minimum 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1009 



PROPOSED RULES 



prescribed strengths. 

(i) fb) After sanitization, 
utensils shall be air dried. 



all equipment and 



Statutory Authority G.S. 110-91. 

.2813 MECHANICAL CLEANING 
AND SANITIZING 

(a) If mechanical dishwashing equipment is 
used, such equipment shall be constructed and 
operated in accordance with National Sanitation 
Foundation Standards or equal except as noted in 
Rule .2810(a)(1) of this Section. 

(b) Machine or water line mounted numerically 
scaled indicating thermometers, accurate to +3°F 
(+ 1.5°C) , shall be provided to indicate the 
temperature of the water in each tank of the 
machine and the temperature of the final rinse 
water as it enters the manifold. 

(c) An adequate drainboard for the proper 
handling of soiled utensils prior to washing and 
adequate space for the proper handling of cleaned 
utensils following sanitization shall be provided. 

(d) Equipment and utensils shall be flushed or 
scraped and, when necessary, soaked to remove 
gross food particles and soil prior to being washed 
in a dishwashing machine unless a prewash cycle 
is a part of the dishwashing machine operation. 
Equipment and utensils shall be placed in racks, 
trays, or baskets, or on conveyors, in a way that 
food-contact surfaces are exposed to the 
unobstructed application of detergent wash and 
clean rinse waters and that permits free draining. 

(e) Machines using chemicals for sanitization 
may be used provided that a suitable testing 
method or equipment shall be available, 
convenient, and regularly used to test chemical 
sanitizers to insure minimum prescribed strengths. 

(f) All dishwashing machines shall be 
thoroughly cleaned at least once a day or more 
often when necessary to maintain them in a 
satisfactory operating condition. 

(g) After sanitization, all equipment and utensils 
shall be air dried. 

Statutory Authority G.S. 110-91. 

.2814 FOOD SERVICE EQUIPMENT 
AND UTENSIL STORAGE 

(a) Cleaned and sanitized equipment and utensils 
shall be handled in a way that protects them the 
food-contact surfaces from hand contamination. 
Spoons, knives, and forks shall be touched only by 
their handles. Cups, glasses, bowls, plates, and 
similar items shall be handled without contact with 



inside surfaces or surfaces that contact the user's 
mouth. 

(b) Cleaned and sanitized utensils and equipment 
shall be stored above the floor in a clean, dry 
location in a way that protects them from dust. 
insects, drip, splash and other contamination and 
facilitates floor cleaning. The food-contact 
surfaces of fixed equipment shall also be protected 
from contamination. Equipment and utensils shall 
not be placed under exposed sewer lines or water 
lines, except for automatic fire protection sprinkler 
heads that may be required by law. 

(c) Single-service utensil s articles shall be 
purchased only in sanitnry clean containers, shall 
be stored in a clean, dry container until used, and 
shall be handled in a sanitnry manner, accordance 
with the rules of this Section. 

Statutory Authority G.S. 110-91. 

.2815 WATER SUPPLY 

(a) Running water under pressure shall be 
provided in sufficient quantities to meet the needs 
of cooking, cleaning, drinking, toilets, and outside 
uses without producing water pressure lower than 
20 psi. 

(b) When a private water supply i s used, it shall 
be located, con s tructed, maintained and operated 
in — accordance — with — the — Rules — Governing the 
Protection of Private Water Supplies, The water 
supply shall meet the requirements of 15A NCAC 
18Cor 15ANCAC 18A .1700 Protection of Water 
Supplies . Samples of water shall be collected by 
the Environmental Health Specialist and submitted 
to a state certified laboratory for bacteriological 
analysis annually. Other tests of water quality, as 
indicated by possible sources of contamination, 
may be collected by the Environmental Health 
Specialist. 

(c) No cross-connections with an unapproved 
water supply shall exist. If potential back-flow 
conditions exist, an approved back-flow prevention 
device shall be provided. 

(d) Water heating equipment that is sufficient to 
meet the maximum expected requirements of the 
child day care facility shall be provided. Capacity 
and recovery rates of hot water heating equipment 
shall be based on number and size of sinks, 
capacity of dishwashing machines, capacity of 
laundering machines, diaper changing facilities, 
and other food service and cleaning needs. Hot 
and cold water under pressure shall be easily 
accessible to all rooms where food is processed or 
handled, rooms in which utensils or equipment are 
washed, and other areas where water is required 



1010 



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PROPOSED RULES 



for cleaning and sanitizing, including lavatories 
and diaper changing areas. 

(e) Hot water heating equipment shall provide 
hot water at a minimum temperature of 130°F 
(54 °C) at the point of use when hot water is not 
used for sanitizing. When hot water is used for 
sanitizing, a minimum temperature of 140°F 
(60°C) shall be provided at the point of use. 
However, hot water to tho s e areas accessible to 
children, — including — lavatories — s erving — diaper 
changing areas, shall be no less than 90°F and 
shaH — net — exceed — 11Q°F. Running water at 
lavatories other than in food preparation or 
dishwashing areas, shall be no less than 90°F and 
shall not exceed 110°F (44 °Q. 

Statutory Authority G.S. 110-91. 

.2816 DRINKING WATER FACILITIES 

(a) Drinking fountains of an approved type or 
individual drinking utensils shall constitute 
approved drinking water facilities. 

(b) Drinking fountains, if provided, shall be of 
sanitary angle-jet design properly regulated and 
kept clean. The pressure shall be regulated so that 
the individual's mouth does not come in contact 
with the nozzle and so that water does not splash 
on the floor. 

(c) All multi-use utensils used for drinking 
purposes shall be easily cleanable and thoroughly 
cleaned and sanitized after each use. Disposable 
utensils Single-service articles used for drinking 
water shall be stored and handled so as not to 
become contaminated by insects, splash, dust, and 
other contamination . 

(d) Baby bottles shall be properly labeled 
identifying the appropriate child with the child's 
name . Drinking water in baby bottles shall be 
stored and handled in such a manner as to be 
protected against contamination. 

Statutory Authority G.S. 110-91. 

.2817 TOILETS 

(a) All toilet fixtures and toilet rooms shall be 
located to comply with the requirements of these 
Rules. All toilet fixtures shall be easily cleanable, 
and in good repair , and kept free of storage . 
Toilet fixtures shall be child-sized, ef properly 
adapted adult toilets or potty chairs for young 
toddlers . 

(b) Toilet fixtures shall be cleaned and sanitized 
as needed when soiled and at least on a daily 
basis. A solution of 100 ppm chlorine solution or 
other equivalent methods approved by the 



Environmental Health Specialist shall be used for 
sanitizing. 

(c) If potty chairs are used, a spray rinse toilet 
or utility sink shall be located in a toilet room for 
the purpose of cleaning potty chairs. After 
cleaning, potty chairs shall be sanitized with 100 
ppm — chlorine — solution — ef — by — other — method s 
approved by the Environmental Health Specialist- 
Potty chairs shall be emptied rinsed, cleaned and 
sanitized when soiled or at least on a daily basis, 
with 100 ppm chlorine solution or equivalent 
method approved by the Environmental Health 
Specialist. 

(d) The diaper changing area shall be located m 
close — proximity te near a toilet room or 
flush-rimmed sink. 

Statutory Authority G.S. 110-91. 

.2818 LAVATORIES 

(a) Lavatories shall be sized and located to 
comply with the appropriate handwashing 
requirements of these Rules, easily cleanable, in 
good repair, and kept free of storage. Lavatories 
shall be mounted at an appropriate height to 
accommodate the children, or otherwise made 
accessible. 

(b) All lavatories shall be equipped with hot and 
cold running water through mixing faucets except 
that automatic mixing faucets or pre-mixing 
devices which provide water at the temperature 
specified in Rule .2815(e) of this Section may be 
provided. 

(c) Lavatories shall be cleaned and sanitized as 
needed and at least on a daily basis. A solution of 
100 ppm chlorine or other approved methods shall 
be used for sanitizing. 

(d) Soap and disposable towels shall be provided 
at every handwash lavatory area. 

{e) — Separate lavatories s hall be provided for use 
by staff in kitchen s and other food preparation 
areas or dishwashing areas. 

(f) (e) Handwash signs shall be posted at each 
employee handwashing lavatory. 

Statutory Authority G.S. 110-91. 

.2819 DIAPERING AND DIAPER 
CHANGING FACILITIES 

(a) Infants and toddlers shall be diapered at 
areas designated exclusively for diapering. 

(b) Diapering surfaces shall be smooth, 
nonabsorbent, easily cleanable and — ef- — tight 
construction and shall be approved by the 
Environmental Health Specialist. 



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1011 



PROPOSED RULES 



(c) Diapering surfaces shall be kept free of 
storage and shall be cleaned with a mild solution 
of water and detergent and sanitized after each 
changing. A solution of 100 ppm chlorine or 
equivalent methods approved by the Environmental 
Health Specialist shall be used for sanitizing. A 
suitable testing method or kit shall be available^ 
convenient, and regularly used to insure 
compliance with the minimum prescribed strength. 
This sanitizer shall be made fresh daily and used 
from a labeled hand pump spray bottle. 

(d) Each diaper changing area in a facility 
licensed for 13 or more children shall include a 
handwash lavatory for caregivers. For a facility 
licensed for less than 13 children, a handwash 
lavatory shall be conveniently located te in or near 
diaper changing areas. 

(e) The use of disposable latex gloves by 
caregivers during the diaper changing process is 
required if the worker has cuts or sores on hands 
or chapped hands. Gloves shall be discarded after 
use with each child. 

(f) Caregivers may dispose of feces ]n diapers ]n 
the toilet, but shall not rinse soiled cloth diapers^ 
or training pants or clothes . Soiled cloth diaper^ 
training pants or clothes shall be sent to a diaper 
service or placed in a tightly closed plastic bag or 
other equivalent container approved by the 
Environmental Health Specialist and sent daily to 
the child's home to be laundered. 

(g) Pre-moistened towelettes or damp paper 
towels shall be used for cleaning children during 
the changing process. Soiled paper or towelettes 
shall be discarded after use with each child and 
shall be disposed of in a covered plastic-lined 
receptacle. 

(h) Soiled disposable diapers shall be placed in 
a cleanable, plastic-lined, covered container and 
removed to an exterior garbage area on a frequent, 
regular basis at least daily . 

(i) Caregivers shall wash their hands vigorously 
for at least — 15 seconds with soap and runni ng 
tempered — water after each diaper change in 
accordance with Rule .2828 of this Section at the 
lavatory designated for that purpose . 

(j) The child's hands shall be washed in the 
lavatory, or with single-use, pre-moistened 
towelettes after each diaper change. 

(k) A sign instructing — caregivers — in proper 
methods of diaper changing, handwashing and area 
clean up shall be posted at each diaper changing 
afea Instructions providing information to care 
givers in proper methods of diaper-changing and 
handwashing shall be posted in each diaper 
changing area . 



Statutory Authority G.S. 110-91. 

.2820 STORAGE 

(a) Rooms or spaces shall be provided for the 
storage of equipment, furniture, toys, clothes, 
beds, cots, mats, and supplies and shall be kept 
clean. Shelving or other storage, constructed in a 
manner to facilitate cleaning, shall be provided for 
orderly storage of supplies, including mats and 
toys. 

(b) All corrosive agents, insecticides, 
rodenticides, herbicides, bleaches, detergents, 
polishes, items containing petroleum products, any 
product which is under pressure in an aerosol 
dispensing can, and any substance which may be 
hazardous to a child if ingested, inhaled, or 
handled shall be stored in a locked storage room 
or locked cabinet locked with a combination lock 
or key. Key s shall be kept out of the reach of a 
child The key shall not be stored in the lock . 

(c) A properly mixed sanitizing solution 
approved by the Environmental Health Specialist 
that is kept in the infant and toddler diaper 
changing areas shall not be required to be stored in 
a locked storage room or locked cabinet. In these 
areas, this sanitizer shall be clearly labeled and 
shall not be accessible to infants and toddlers. 

(d) Medications shall be stored in a separate 
locked cabinet or other locked container. 
Medications which require refrigeration shall be 
stored in a locked box or locked container in a 
designated area for such storage in a refrigerator 
which is not accessible to children. 

(e) Individual cubicles, lockers, or coat hooks 
shall be provided for storage of coats, hats, or 
similar items. Coat hooks not in individual 
cubicles or lockers, shall be spaced at least 12 
inches apart. Individual toothbrushes or combs 
used by children shall be stored in a sanitary 
manner individual toothbrush or comb cases. 

Statutory Authority G.S. 110-91. 

.2821 BEDS, COTS, MATS, AND 
LINENS 

(a) All beds, cribs, cots, and mats shall be in 
good repairr properly stored to protect them from 
splash, drip and other contamination, stored, 
cleaned regularly and sanitized between users. 

(b) Individual cribs, portable cribs, or play pens 
used for sleeping shall be easily cleanable, of tight 
construction and equipped with a mattress made of 
waterproof, washable material at least two inches 
thick. The mattress shall fit snugly so that an 
adult can fit no more than two fingers between the 



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PROPOSED RULES 



mattress and the crib, portable crib or play pen. 

(c) All beds, cots or mats shall be assigned and 
labeled for each individual child, and equipped 
with individual linens. All linen shall be kept 
clean and in good repair. 

(d) Mats shall be of a waterproof, washable 
material at least two inches thick and shall be 
stored so that the floor side does not touch the 
sleeping side or by a an equivalent method 
approved by the Environmental Health Specialist. 

(e) When in use Beds beds , cribs, cots, mats and 
playpens shall be placed at least 1 8 inches apart or 
separated by partitions which prevent children 
from physical contact when in use . 

(f) Linen shall be stored with the individual mat 
or cot until laundered or stored individually for 
each child in a designated area if taken off the 
mats or cots. Linen shall be laundered a minimum 
of one time per week, or more often a s needed if 
soiled . Linen used for more than one child shall 
be laundered between users. Linen used in infant 
rooms shall be changed and laundered a s needed 
when soiled and at least on a daily basis. Linens 
shall be large enough to cover the sleeping 
surface. 

Statutory Authority G.S. 110-91. 

.2822 FURNITURE AND TOYS 

(a) Furniture shall be of easily cleanable 
construction, and shall be kept clean and in good 
repair. 

(b) Equipment and toys provided by the facility 
shall be of easily cleanable construction, and shall 
be kept clean and in good repair. In infant and 
toddler rooms, mouth-contact surfaces shall be 
sanitized at least daily and more frequently if 
necessary. 

(c) Toys, furniture, cribs, or other items 
accessible to children, shall be free of peeling, 
flaking, or chalking paint. 

(d) Water play activity centers shall be filled just 
prior to use of the center. Water must be dumped 
at least daily or more often if visibly soiled. The 
water activity unit, including toys, shall be cleaned 
and sanitized at least daily or more often if soiled- 
Wading pools are not water play activity centers 
and are regulated under 15A NCAC 18A .2500. 



Statutory Authority G.S. 110-91. 

.2823 PERSONNEL 

(a) Employees shall maintain n high degree of 
personal — cleanlines s — and — conform — te — hygienic 



practices while on duty wear clean outer clothing 
and shall be clean as to their person and methods 
of foodhandling . Employees shall keep their 
fingernails clean and trimmed. Fingernail polish 
s hall not be worn by food s ervice personnel. 

(b) Employees shall wear clean outer clothing. 

{e) £b) Hair nets, caps, or other effective similar 
hair restraints shall be worn by employees engaged 
in the preparation of food. Hair spray or barrettes 
are is- not considered an effective hair restraint. 

(d) (c) Tobacco use in any form is prohibited in 
the food preparation area, in any part of the day 
care facility accessible to the children, and in the 
playground area. 

fe) £d) Persons with a communicable disease or 
a communicable condition shall be excluded from 
situations in which transmission can be reasonably 
expected to occur, in accordance with 
Communicable Disease Control Measures (15A 
NCAC 19A .0200). Any person with boils, sores, 
burns, infected wounds or other potentially 
draining lesions on the face, neck, hands, lower 
arms or other exposed skin shall properly bandage 
affected area to eliminate exposure to drainage. If 
exposure to drainage cannot be eliminated or 
proper handwashing cannot be maintained, then the 
employee shall be excluded from the facility while 
the condition exists. 

(f) £e) Volunteer personnel shall adhere to the 
same requirements in these Rules as employees. 

Statutory Authority G.S. 110-91. 

.2824 FLOORS 

(a) Floors and floor coverings of all food 
preparation, food storage, utensil-washing areas, 
toilet rooms, and laundry areas shall be 
constructed of nonabsorbent, easily cleanable, 
durable material such as sealed concrete, terrazzo, 
ceramic tile, durable grades of linoleum or plastic, 
or tight wood impregnated with plastic. All floor s 
shall be kept clean and maintained in good repair. 

(b) Floors and floor coverings of all sleeping 
and play areas shall be constructed of easily 
cleanable, durable materials. 

(c)-fb) Carpeting used as a floor covering shall 
be of closely woven construction, properly 
installed, and easily cleanable , such as 100 percent 
Olefin fiber carpet and backing, and shall be kept 
clean and maintained in good repair . Carpeting is 
prohibited in food preparation areas , equipment-; 
and utensil-washing areas, food storage areas, 
laundry areas, and toilet rooms. 

(d) Floors in areas accessible to children, shall 
be free of peeling, flaking or chalking paint. 



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1013 



PROPOSED RULES 



(e) All floors shall be kept clean and maintained 
in good repair. 

Statutory Authority G.S. 110-91. 

.2826 LIGHTING AND THERMAL 
ENVIRONMENT 

(a) All rooms and enclosed areas shall be well 
lighted by natural or artificial means. Lighting 
shall be capable of illumination to at least 50 
foot-candles at work surfaces. At least 10 foot- 
candles of light, at 30 inches above the floor, shall 
be provided in all other areas, including storage 
rooms. Light fixtures in all areas shall be kept 
clean and in good repair. Properly Completely 
shielded bulbs or shatterproof bulbs shall be used 
in food preparation, storage, and serving areas and 
in all rooms used by children. 

(b) All rooms used by children shall be heated, 
cooled, and ventilated to maintain a temperature 
between 65°F (19°Q and 85°F (30°C) . 
Ventilation may be in the form of operable 
windows which are screened or by means of 
mechanical ventilation to the outside. Windows 
and window treatments shall be kept clean and in 
good repair. All ventilation equipment, including 
heating and cooling vents, fans, and all special 
ventilation equipment which is required for 
kitchens and toilet rooms, shall be kept clean and 
in good repair. 



.2828 HANDWASHING 

(a) Employees shall be instructed that 
handwashing is the single most important line of 
defense in preventing the transmission of 
disease-causing organisms. Employees shall wash 
hands upon reporting for work; before handling 
food, feeding infants or children, handling clean 
utensils or equipment; after toileting, handling of 
body fluids (e.g. saliva, nasal secretions, vomitus, 
feces, urine, blood, secretions from sores, 
pustulant discharge); after diaper changing; and 
after handling soiled items such as garbage, mops, 
cloths, and clothing. 

(b) Children shall wash hands after each visit to 
the toilet and before eating meals or snacks and 
before water activity play. 

(c) Proper handwashing procedures shall 
include: 

Using soap and tempered running 
water; 

Rubbing hands vigorously with soap 
and tempered water for 15 seconds; 
Washing all surfaces of the hands, to 
include the backs of hands, palms, 
wrists, under fingernails, and between 
fingers; 

Rinsing well for 10 seconds; 
Drying hands with a paper towel or 
mechanical dryer; 
(6) Turning off feucet with paper towel. 



(1) 



(2) 



(3) 



(4) 
(5) 



Statutory Authority G.S. 110-91. 



Statutory Authority G.S. 110-91. 



.2827 COMMUNICABLE DISEASES 
AND CONDITIONS 

(a) Any child who becomes ill at the facility and 
is suspected of having a communicable disease or 
communicable condition shall be separated from 
the other children until the child leaves the facility. 

(b) Each facility shall include a designated area 
for a child who becomes ill. When in use, such 
area space shall be equipped with a bed^ er cot or 
mat and a vomitus receptacle. All materials shall 
be sanitized after each use. Linens and 
disposables shall be changed after each use. 

(c) If the area is not a separate room, it shall be 
separated from space used by other children by a 
partition, screen or other means approved by the 
Environmental Health Specialist. It shall be m 
close proximity te in or near a toilet and lavatory, 
and where health and sanitation measures can be 
carried out without interrupting activities of other 
children and staff. 

Statutory Authority G.S. 110-91. 



.2829 WASTEWATER 

All s ewage wastewater shall be disposed of in a 
publically-owned wastewater treatment (POWT) 
system or by an approved sanitary aewnge properly 
operating on-site wastewater system. 

Statutory Authority G.S. 110-91. 

.2830 SOLDD WASTES 

(a) Solid wastes containing food scraps or other 
putrescible materials shall, prior to disposal, be 
kept in durable, rust-resistant, nonabsorbent, 
water-tight, rodent-proof, and easily cleanable 
containers such as standard garbage cans which 
shall be covered with tight lids when filled or 
stored or not in continuous use. Refuse including 
scrap paper, cardboard boxes and similar items 
shall be stored in containers, rooms or designated 
areas approved by the Environmental Health 
Specialist. 

(b) Facilities shall be provided for the washing 
and storage of all garbage cans and mops for day 



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PROPOSED RULES 



care facilities licensed for 13 or more children. 
Cleaning facilities shall include combination 
faucet, hot and cold running water, threaded 
nozzle, and curbed impervious pad sloped to drain 
into an approved sanitary sewage system. Other 
can cleaning facilities approved prior to the 
effective date of these Rules July l± 1991 shall be 
deemed approved if in good repair and functioning 
properly. Can cleaning facilities replaced after the 
effective date of the s e Rules July J^ 1991 shall 
meet the requirements of this Section. 

(c) Where containerized systems are used for 
garbage storage, facilities shall be provided for the 
cleaning of such systems. A contract for off-site 
cleaning shall constitute compliance with this 
Section. 

(d) Solid wastes shall be disposed of with 
sufficient frequency and in s uch a manner so as to 
prevent insect breeding and public health 
nuisances. 

Statutory Authority G.S. 110-91. 

.2833 SWIMMING AND WADING POOLS 

(a) Swimming and wading pools shall be 
designed, constructed, operated and maintained in 
accordance with the N.C. Rules Governing 
Swimming Pools, 15A NCAC 18A .2500. Copies 
of these Rules may be obtained from the 
Environmental Health Services Section, Division 
of Environmental Health, Department of 
Environment, Health, and Natural Resources, P.O. 
Box 27687, Raleigh, North Carolina 27611-7687. 

(b) Unfiltered and nondisinfected containments 
of water shall not be utilized for water recreation 
activities. Swimming and wading pools^ if 
present, shall be permanent structural features of 
the facility. 

Statutory Authority G.S. 110-91. 

.2834 COMPLIANCE 

(a) The Environmental Health Specialist shall 
indicate on the Sanitation Standards Evaluation 
Form for Child Day Care Facilities whether the 
facility is superior, approved, provisional, or 
disapproved. The classification shall be posted in 
the facility in a conspicuous place designated by 
the Environmental Health Specialist. The 
superior, approved, provisional, or disapproved 
classification of a child day care facility is based 
on the facility's compliance with the standards for 
construction and operation found in this Section. 

(b) The degree of the facility's compliance is 
indicated by the total demerit-point score which is 



(2) 



(3) 



(4) 



shown on the Sanitation Standards Evaluation 
Form that the Environmental Health Specialist 
completes. 

(1) Prior to the issuance of an initial li 
cense, the facility shall comply with all 
items of this Section as determined by 
the Environmental — Health — Specialist; 
For the purpose of issuing a license to 
a new operator, a Sanitation Standards 
Evaluation Form for Child Day Care 
Facilities, shall be forwarded to the 
Division of Child Development only 
when the facility can be granted a 
superior classification. 
A facility shall be classified as superior 
if the total demerit score is not more 
than 15 and no 6-demerit-point item is 
violated; 

A facility shall be classified as 
approved if the total demerit score is 
more than 15 and not more than 30, 
and no 6-demerit-point item is violated; 
A facility shall be classified as 
provisional if any 6-demerit-point item 
is violated, or if the total demerit-point 
score is more than 30 but not more than 
45. This provisional period shall not 
exceed seven days unless construction 
or renovation is necessary to correct 
any violation, in which case the 
Environmental Health Specialist may 
allow a longer provisional period; 
A facility shall be classified as 
disapproved if the demerit score is 46 
or more, or if conditions which resulted 
in a provisional classification have not 
been corrected in the time period 
specified by the Environmental Health 
Specialist; 
If the 7 day provisional status is 

extended, &f — upon reinspoction 

additional demerits are found period 
exceeds seven days , or the facility is 
disapproved, the Child — Day — Gafe 
Section Division of Child Development 
shall be notified immediately by 
forwarding a copy of the inspection 
report to the Child Day Care Section 
Division of Child Development . The 
Environmental Health Specialist shall 
notify the Child — Day — Care — Section 
Division of Child Development in 
accordance with Rule .2803 of this 
Section. 
(7) The classification card shall not be 



(5) 



(6) 



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1015 



PROPOSED RULES 



removed by anyone, except by or upon 
the instruction of the Environmental 
Health Specialist. 

Statutory Authority G.S. 110-91. 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rules cited as 15A 
NCAC 19C .0601 - .0603, .0605 - .0607 and 
adopt 19C .0609 - .0610. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 1:30 
p.m. on October 20, 1994 at the Groundfloor 
Hearing Room, Archdale Building, 512 N. Salis- 
bury Street, Raleigh, NC. 

I\eason for Proposed Action: 

15A NCAC 19C .0601 - The definition of the 

Management Consultant accreditation category has 

been deleted and the definition of the Supervising 

Air Monitor accreditation category has been 

added. The Supervising Air Monitor directs, 

coordinates and approves all activities of air 

monitors working under his supervision. 

15A NCAC 19C .0602 - The Management 

Consultant's accreditation requirements have been 

deleted and Supervising Air Monitor's 

accreditation requirements have been added. With 

the addition of the new category of Supervising Air 

Monitor, the Air Monitor's accreditation 

requirements were also rexised. 

ISA NCAC 19C .0603 - Amends training course 

approval procedures for clarification due to 

statutory requirement of fees for training course 

approval. 

15A NCAC 19C .0605 - Clarifies what the 

contractor needs to maintain on site during 

removal activities for availability for review by the 

Program. 

15A NCAC 19C .0606 - Amended to include the 

applicable fees for initial and renewal training 

course approvals. 

15A NCAC 19C .0607 - Amended to include the 

supervising air monitor for final visual inspections 

of permitted asbestos removals. 

15A NCAC 19C .0609 - Proposed adoption to 



include and clarify the Health Commission's 
adoption of the Asbestos National Emission 
Standards for Hazardous Air Pollutants (NESHAP) 
for renovations and demolitions. NESHAP for 
renovations and demolitions was originally under 
the control of the Environmental Management 
Commission. 

15 A NCAC 19C .0610 - Proposed for adoption in 
order to clarify that the local air pollution 
programs certified as of October 1 , 1994, pursuant 
to G.S. 143-215.112 to enforce the asbestos 
NESHAP for renovations and demolitions, will 
continue to enforce the asbestos NESHAP so long 
as certification is maintained. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Grady L. 
Balentine, Department of Justice, PO Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by November 2, 1994. Persons 
who wish to speak at the hearing should contact 
Mr. Balentine at (919) 733-4618. Persons who 
call in advance of the hearing will be given 
priority on the speaker's list. Oral presentation 
lengths may be limited depending on the number of 
people that wish to speak at the public hearing. 
Only persons who have made comments at a public 
hearing or who have submitted written comments 
will be allowed to speak at the Commission 
meeting. Comments made at the Commission 
meeting must either clarify previous comments or 
proposed changes from staff pursuant to comments 
made during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
RULES AT THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21.2(f). 

On July 6, 1994, the General Assembly ratified 
House Bill 650, which amended G.S. 130A, Article 
19 to conform with recent federal requirements. 
These statutory amendments become effective 



1016 



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PROPOSED RULES 



October 1, 1994. 

Therefore, to ensure adherence to federal 
regulations, temporary rules are needed in order 
to have rules covering these requirements as soon 
as possible after October 1 , 1994. 

The Commission for Health Services will hold its 
regularly scheduled meeting on November 3, 1994 
beginning at 1:00 pm, at the Four Seasons Holiday 
Inn, 3121 High Point Road, Greensboro, NC. The 
above-captioned rules are on the agenda to be 
adopted as temporary rules with an effective date 
of November 8, 1994. 

CHAPTER 19 - HEALTH: 
EPIDEMIOLOGY 

SUBCHAPTER 19C - OCCUPATIONAL 
HEALTH 

SECTION .0600 - ASBESTOS HAZARD 
MANAGEMENT PROGRAM 

.0601 GENERAL 

(a) The definitions contained in G.S. 130A-444 
and the following definitions shall apply 
throughout this Section: 

(1) "Abatement Designer" means a person 
who is directly responsible for planning 
all phases of an asbestos abatement 
design from abatement site preparation 
through complete disassembly of all 
abatement area barriers. In addition to 
meeting the accreditation requirements 
of Rule .0602(c)(5) of this Section, the 
abatement designer may be subject to 
the licensure requirements for a 
Registered Architect as defined in G.S. 
83A or a Professional Engineer as 
defined in G.S. 89C. 

(2) "Abatement Project Monitoring Plan" 
means a written project-specific plan 
for conducting visual inspections and 
ambient and clearance air sampling. 

(3) "Air Monitor" means a person who 
implements the abatement project 
monitoring plan, collects ambient and 
clearance air samples, performs visual 
inspections, or monitors and evaluates 
asbestos abatement projects. 

(4) "Asbestos Abatement Design" means a 
written or graphic plan prepared by an 
accredited abatement designer 
specifying how an asbestos abatement 
project will be performed, and includes, 



but is not limited to, scope of work and 
technical specifications. The asbestos 
abatement designer's signature and 
accreditation number shall be on all 
such abatement designs. 

(5) "Completion Date" means the date on 
which all activities on a permitted 
asbestos removal requiring the use of 
accredited workers and supervisors are 
complete, including the complete 
disassembly of all removal area 
barriers. 

(6) "Emergency Renovation Operation" as 
defined in 40 CFR Part 61.141. 

(7) "Inspector" means a person who 
examines buildings or structures for the 
presence of asbestos containing 
materials, collects bulk samples or 
conducts physical assessments of the 
asbestos containing materials. 

(8) "Installation" means any building or 
structure or group of buildings or 
structures at a single site under the 
control of the same owner or operator. 

{9) "Management — Consultant" — mean s — a 

person who performs only 

administration — ef — over s ight — services 
before, — during — ©f — aftef — asbe s tos 
abatement activitie s . 

(9) (W) "Management Planner" means a 
person who interprets inspection 
reports, conducts hazard assessments of 
asbestos containing materials or 
prepares written management plans. 

(10) f4+) "Nonscheduled Asbestos Removal" 
means an asbestos removal required by 
the routine failure of equipment, which 
is expected to occur within a given 
period based on past operating 
experience, but for which an exact date 
cannot be predicted. 

(11) (±3) "Program" means the Asbestos 
Hazard Management Branch within the 
NC Department of Environment, 
Health, and Natural Resources. 

(12) (4-3) "Public Area" means as defined in 
G.S. 130A-444(7). Any area to which 
access by the general public is usually 
prohibited, or is usually limited to 
access by escort only, shall not 
constitute a "public area." 

(13) (44) "Regulated Asbestos Containing 
Material" as defined in 40 CFR Part 
61.141. 

(14) (45) "Start Date" means the date on 



9:13 



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October 3, 1994 



1017 



PROPOSED RULES 



which activities on a permitted asbestos 
removal project requiring the use of 
accredited workers and supervisors 
begin, including removal area isolation 
and preparation or any other activity 
which may disturb asbestos containing 
materials. 

(15) f4-6) "Supervising Air Monitor" means 
a person who^ in addition to performing 
the duties of an air monitor, prepares a 
written abatement project monitoring 
plan and implements the plan or ensures 
that the plan is implemented by an air 
monitor working under his supervision. 
The supervising air monitor directs, 
coordinates and approves all activities 
of air monitors working under his 
supervision. 

(16) {¥?) "Supervisor" means a person who 
is a 'competent person' as defined in 

39 G-FR- 1926.5 8 (b) 29 CFR 

1926.1101(b) and adopted by 13 NCAC 
7F .0201 and amendments or 
recodifications as adopted by the North 
Carolina Department of Labor, and 
who is an 'on-site representative' as 
defined in 40 CFR Part 61.145(c)(8), 
and who performs the duties specified 
therein. 

(17) {+8) "Under the direct supervision" 
means working under the immediate 
guidance of an accredited individual 
who is responsible for all activities 
performed. 

(18) ft9) "Worker" means a person who 
performs asbestos abatement under the 
direct supervision of an accredited 
supervisor. 

(19) {20} "Working day" means Monday 
through Friday. Holidays falling on 
any of these days are included in the 
definition. 

(b) Asbestos management activities conducted 
pursuant to this Section shall comply with 
"AHERA" as defined in G.S. 130A-444(1) and 40 
CFR Part 763, Subpart E and Appendices, as 
applicable. 40 CFR Part 763, Subpart E is hereby 
incorporated by reference, including any 
subsequent amendments and editions. This 
document is available for inspection at the 
Department of Environment, Health, and Natural 
Resources, Asbestos Hazard Management Branch, 
441 North Harrington Street, Raleigh, North 
Carolina 27603. Copies may be obtained from the 
Government Printing Office by writing to the 



Superintendent of Documents, Government 
Printing Office, P.O. Box 371954, Pittsburgh, PA 
15250-7954, at a cost of twenty-six dollars 
($26.00). 

Statutory Authority G.S. 130A-5(3); 130A-451; 
P.L. 99-519. 

.0602 ACCREDITATION 

(a) No person shall perform asbestos 
management activities until that person has been 
accredited by the Program in the appropriate 
accreditation category, except as provided for in 
G.S. 130A-447, (b) and (c). 

(b) An applicant for accreditation shall meet the 
provisions of the "EPA Model Contractor 
Accreditation Plan" contained in 40 CFR Part 763, 
Subpart E, Appendix C and successfully complete 
applicable training courses approved by the 
Program pursuant to Rule .0603 of this Section. 

(c) In addition to the requirements in Paragraph 
(b) of this Rule, an applicant, other than for the 
worker category, shall meet the following: 

(1) an applicant for initial accreditation 
shall have successfully completed an 
approved initial training course for the 
specific discipline within the 12 months 
immediately preceding application. If 
initial training was completed more than 
12 months prior to application, the 
applicant shall have successfully 
completed an approved refresher 
training course for the specific 
discipline at least every 24 months from 
the date of completion of initial training 
to the date of application; 

(2) an inspector shall have: 

(A) a high school diploma or equivalent; 
and 

(B) at least three months of asbestos 
related experience as, or under the 
direct supervision of, an accredited 
inspector, or equivalent experience; 

(3) a management planner shall have a high 
school diploma or equivalent and shall 
be an accredited inspector; 

(4) a supervisor shall have: 

(A) a high school diploma or equivalent; 
except that this requirement shall not 
apply to supervisors that were 
accredited on November 1, 1989; and 

(B) at least three months of asbestos 
related experience as, or under the 
direct supervision of, an accredited 
supervisor, or equivalent experience; 



1018 



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PROPOSED RULES 



(5) an abatement designer shall have: 

(A) a high school diploma or equivalent; 
and 

(B) at least three months of asbestos 
related experience as, or under the 
direct supervision of, an accredited 
abatement designer, or equivalent 
experience; 

(6) an air monitor shall work only under an 
accredited supervising air monitor or 
meet the provisions of Part (c)(7)(C) of 
this Rule. In addition, all air monitors 
shall meet the following requirements: 

(A) Education and Work Experience: 
(i) 



(ii) 



(ii) 



a high school diploma or 
equivalent; 

three months of asbestos air 
monitoring experience as, or 
under the direct supervision of, an 
accredited air monitor or 
equivalent within 12 months prior 
to applying for accreditation; 

(B) Training Requirements: 

(i) complete a Program approved 
NIOSH 582 or Program approved 
NIOSH 582 equivalent and meet 
the initial and refresher training 
requirements of this Rule for 
supervisorsT ' x A a Program 
approved project monitor 
refresher course may be 
substituted for the supervisor 
refresher course; or 
meet the initial and refresher 
training requirements of this Rule 
for a Program approved five-day 
project monitor course and a 
Program approved annual 
refresher course; 

air monitors with a valid 
accreditation on October 1, 1994 
shall have until October 1, 1995 
to meet the training requirements 
for air monitors set forth in this 
Paragraph; 

(G) — Professional Status: 

{t) An air monitor accredited on or 

after February 1, 1991, or an air 
monitor accredited prior to that 
date who — h«s — not continuously 
maintained accreditation, shall be 
a Certified Industrial Hygicnist or 
work — eeiy — under — a — Certified 
Industrial — Hygicnist — whe — is — an 
accredited — atf — monitor, who 



(iii) 



s erve s — as — the — supervising — atf 
monitor; or 

(ii) An air monitor accredited prior to 

February — h — 1991, — whe — has 

continuously maintained 

accreditation shall be a Certified 
Industrial Hygicni s t, Professional 
Engineer, or Registered Architect, 
or work only under a Certified 
Industrial Hygicni s t, Professional 
Engineer, or Registered Architect 
whe — is — accredited — as — as — aw 
monitor, — and who — serves as a 
s upervising air monitor. 
(7) a supervising air monitor shall meet the 
following requirements: 

(A) Education and Work Experience: 

fi) a high school diploma or 
equivalent; 

(ii) three months of asbestos air 
monitoring experience as, or 
under the direct supervision of, an 
accredited air monitor or 
equivalent within 12 months prior 
to applying for accreditation; 

(B) Training Requirements: 

(i) complete a Program approved 
NIOSH 582 or Program approved 
NIOSH 582 equivalent and meet 
the initial and refresher trainin g 
requirements of this Rule for 
supervisors; a Program approved 
project monitor refresher course 
may be substituted for the 
supervisor refresher course; or 
meet the initial and refresher 



£ii) 



training requirements of this Rule 
for a Program approved five-day 
project monitor course and a 
Program approved annual 
refresher course; 

supervising air monitors with a 
valid accreditation on October \± 

1994 shall have until October l^ 

1995 to meet the training 
requirements for supervising air 
monitors set forth in this 



Paragraph; 
(C) Professional Status 

Ii) 



a supervising air monitor who was 
accredited as an air monitor on or 
after February \± 1991, or an air 
monitor accredited prior to that 
date who has not continuously 
maintained accreditation, shall be 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1019 



PROPOSED RULES 



a Certified Industrial Hygienist; 
(ii) a supervising air monitor who was 
accredited as an air monitor prior 
to February _L, 1991, who has 
continuously maintained 
accreditation shall be a Certified 
Industrial Hygienist, Professional 
Engineer, or Registered Architect; 
(D) Air monitors with a valid 
January I 



accreditation 
supervising 
monitors shall 
accredited 



on 
other 



1995 
accredited air 
be 



be deemed to 



supervising air monitors 

for the duration of their existing air 

monitor accreditation. 

(d) To obtain accreditation, the applicant shall 

submit, or cause to be submitted, to the Program: 

(1) a completed application on a form 
provided by the Program with the 
following information: 

(A) full name and social security number 
of applicant; 

(B) address, including city, state, zip 
code, and telephone number; 

(C) date of birth, sex, height, and weight; 

(D) discipline applied for; 

(E) name, address, and telephone number 
of employer; 

(F) training agency attended; 

(G) name of training course completed; 
(H) dates of course attended; 

(2) two current 1 V* inch x 1 14 inch color 
photographs of the applicant with 
applicant's name and social security 
number printed on the back; 

(3) confirmation of completion of an 
approved initial or refresher training 
course from the training agency; the 
confirmation shall be in the form of an 
original certificate of completion of the 
approved training course bearing the 
training agency's official seal, or an 
original letter from the training agency 
confirming completion of the course on 
training agency letterhead, or an 
original letter from the training agency 
listing names of persons who have 
successfully completed the training 
course, with the applicant's name 
included, on the training agency 
letterhead; 

(4) when education is a requirement, a 
copy of the diploma or other written 
documentation; 

(5) when experience is a requirement, work 



history documenting asbestos related 
experience, including employer name, 
address and phone number; positions 
held; and dates when the positions were 
held; and 
(6) when applicants for initial air monitor 
accreditation are working under et an 
accredited supervising air monitor 
pursuant to Subparagraph (c)(6) of this 
Rule, the accredited supervising air 
monitor shall submit an original, signed 
letter acknowledging responsibility for 
the applicant's air monitoring activities. 
The applicant shall ensure that a new 
letter is submitted to the Program any 
time the information in the letter 
currently on file is no longer accurate. 

(e) All accreditations shall expire at the end of 
the 12th month following completion of required 
initial or refresher training. Work performed after 
the 12th month and prior to reaccreditation shall 
constitute a violation of this Rule. To be 
reaccredited, an applicant shall have successfully 
completed the required refresher training course 
within 24 months after the initial or refresher 
training course. An applicant for reaccreditation 
shall also submit information specified in 
Subparagraphs (d)(l)-(d)(6) of this Rule. If a 
person fails to obtain the required training within 
12 calendar months after the expiration date of 
accreditation, that person may be accredited only 
by meeting the requirements of Paragraphs (b), 
(c), and (d) of this Rule. 

(f) Ail accredited persons shall be assigned an 
accreditation number and issued a 
photo-identification card by the Program. 

(g) In accordance with G.S. 130A-23, the 
Program may revoke accreditation or 
reaccreditation for any violation of G.S. 130A, 
Article 19 or the rules in this Section, or upon 
finding that its issuance was based upon incorrect 
or inadequate information that materially affected 
the decision to issue accreditation or 
reaccreditation. The Program may also revoke 
accreditation or reaccreditation upon a finding that 
the accredited person has violated any requirement 
referenced in Rule .0605(e) of this Section. A 
person whose accreditation is revoked because of 
fraudulent misrepresentations or because of 
violations that create a significant public health 
hazard shall not reapply for accreditation before 
six months after the revocation and shall repeat the 
initial training course and other requirements as set 
out in Paragraphs (b), (c), and (d) of this Rule. 



1020 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



Statutory Authority G.S. 130A-5(3); 130A-447; 
PL. 99-519. 

.0603 APPROVAL OF TRAINING 
COURSES 

(a) Pursuant to Rule .0602 of this Section, 
applicants for accreditation and reaccreditation are 
required to successfully complete training courses 
approved by the Program. Training courses: 

(1) Meeting the requirements of 40 CFR 
Part 763, Subpart E, Appendix C and 
approved for a specific training 
provider by the Environmental 
Protection Agency or by a state with an 
Environmental Protection 
Agency-approved accreditation 
program, or by a state that has a 
written reciprocating agreement with 
the Program and meeting the 
requirements under Paragraph (g) of 
this Rule shall be deemed approved by 
the Program unless approval is 
suspended or revoked in accordance 
with Paragraph (i) of this Rule; 

(2) Required under 40 CFR Part 763, 
Subpart E, Appendix C and having no 
prior Program approval as specified in 
Subparagraph (a)(1) of this Rule shall 
meet the requirements of 40 CFR Part 
763, Subpart E, Appendix C, I and III, 
and Paragraphs (b)-(f) of this Rule; 

(3) Recommended under 40 CFR Part 763, 
Subpart E, Appendix C shall meet the 
requirements of Paragraphs (b)-(f) of 
this Rule; or 

(4) Other than those covered in 
Subparagraphs (l)-(3) of this Paragraph 
required for North Carolina 
accreditation purposes shall meet the 
requirements of Paragraphs (c)-(f) of 
this Rule. 

(b) Refresher training courses shall review and 
discuss changes in the Federal and State 
regulations, developments in the state-of-the-art 
procedures, and key aspects of the initial courses 
outlined under 40 CFR Part 763, Subpart E, 
Appendix C. 

(c) At the completion of the refresher training 
courses in all disciplines, the training provider 
shall administer a written closed book examination, 
approved by the Program. The requirements for 
the examination shall consist of a minimum of 25 
multiple choice questions. For successful 
completion of the course the applicant shall pass 
the exam with a minimum score of 70 percent. 



(d) Training courses shall be evaluated for 
approval by the Program for course administration. 
course length, curriculum, training methods, 
instructors' qualifications, instructors' teaching 
effectiveness, technical accuracy of written 
materials and instruction, examination, and 
training certificate. The evaluation will be 
conducted using 40 CFR Part 763, Subpart E, 
Appendix C or NIOSH 582 curriculum, as 
applicable, which are hereby incorporated by 
reference, including any subsequent amendments 
and editions. These documents are available for 
inspection at the Department of Environment, 
Health, and Natural Resources, Asbestos Hazard 
Management Branch, 441 North Harrington Street, 
Raleigh, North Carolina 27603. Copies of 40 
CFR Part 763, Subpart E, Appendix C may be 
obtained by writing to the Superintendent of 
Documents, Government Printing Office, P.O. 
Box 371954, Pittsburgh, PA 15250-7954, at a cost 
of twenty-six dollars ($26.00). Copies of the 
NIOSH 582 curriculum may be obtained by 
writing the Department of Environment, Health, 
and Natural Resources, Asbestos Hazard 
Management Branch, P.O. Box 27687, Raleigh, 
NC 27611, at a cost of thirty-five dollars ($35.00). 

(e) Training course providers shall submit the 
following for evaluation and approval by the 
Program: 

(1) a completed application on a form 
provided by the Program, along with 
supporting documentation. The form 
and supporting documentation shall 
include the following: 

(A) name, address, and telephone number 
of the training provider, and name 
and signature of the contact person; 

(B) course title, location and the language 
in which the course is to be taught; 

(C) a student manual and an instructor 
manual for each course and a content 
checklist that identifies and locates 
sections of the manual where required 
topics are covered; 

(D) course agenda; 

(E) a copy or description of all 
audio/visual materials used; 

(F) a description of each hands-on 
training activity; 

(G) a copy of a sample exam; 

(H) a sample certificate with the following 
information; and 
(i) Name and social security number 

of student; 
(ii) Training course title specifying 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1021 



PROPOSED RULES 



initial or refresher; 

(iii) Inclusive dates of course and 
applicable examination; 

(iv) Statement that the student 
completed the course and passed 
any examination required; 

(v) Unique certificate number as 
required; 

(vi) For courses covered under 40 
CFR Part 763, Subpart E, 
Appendix C, certificate expiration 
date that is one year after the date 
the course was completed and the 
applicable examination passed; 

(vii) Printed name and signature of the 
training course administrator and 
printed name of the principal 
instructor; 

(viii) Name, address, and phone 
number of the training provider; 

(ix) Training course location; and 

(x) A statement that the person 
receiving the certificate has 
completed the requisite training 
for asbestos accreditation under 
Title II of the Toxic Substances 
Control Act; 
(I) a list of training currently being 
provided. 
(2) A list of instructors and their 
qualifications in accordance with Rule 
.0608 of this Section. 

(f) Contingent approval shall be granted by the 
Program if the application and supporting 
documentation meet the criteria of Rule .0603(d) 
and (e) of this Section, except for technical 
accuracy of instruction! aftd instructor 
effectiveness and course administration . Full 
approval shall be granted for a one year period by 
the Program to a course with contingent approval 
after successful completion of an on-site audit of 
the course conducted in North Carolina . The 
on-site audit shall include, but not be limited to, an 
evaluation of the following: 

(1) instructor effectiveness; 

(2) technical accuracy; 

(3) course administration; and 

(4) course content. 

(g) Training course providers shall perform the 
following in order to maintain approval: 

(1) Issue a certificate of training meeting 
the requirements of Part (e)(1)(H) of 
this Rule to any student who completes 
the required training and passes the 
applicable examination. 



(2) Submit to the Program written notice of 
intention to conduct a training course 
for North Carolina asbestos 
accreditation purposes if the course is 
to be taught in North Carolina or if 
requested by the Program. Notices for 
training courses, except asbestos 
worker, shall be postmarked 10 
working days before the training course 
begins. Notices for asbestos worker 
training courses shall be postmarked 
five working days before the training 
course begins. If the training course is 
cancelled, the training course provider 
shall notify the Program at least 24 
hours before the scheduled start date. 
Notification shall be made using a form 
provided by the Program and shall 
include the following: 

(A) Training provider name, address, 
phone number and contact person; 

(B) Training course title; 

(C) Inclusive dates of course and 
applicable exam; 

(D) Start and completion times; 

(E) Identify whether the course is public 
offering, contract training, or for the 
training provider's employees; 

(F) Location and directions to course 
facility; and 

(G) Language in which the course is 
taught. 

(3) Notify the Program, in writing, at least 
10 working days prior to the scheduled 
course start date, of any changes to 
course length, curriculum, training 
methods, training manual or materials, 
instructors, examination, training 
certificate, training course administrator 
or contact person. The changes must 
be approved by the Program in order 
for the course to be acceptable for 
accreditation purposes. 

(4) Submit to the Program information and 
documentation for any course approved 
under Subparagraph (a)(l)-(3) of this 
Rule if requested by the Program. 

(5) Ensure that all instructors meet the 
requirements of Rule .0608 of this 
Section. 

(6) Ensure that all training courses covered 
under this Rule meet the following 
requirements: 

(A) All training courses shall have a 
maximum of 40 students; 



1022 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



(B) A day of training shall include at least 
six and one-half hours of direct 
instruction, including classroom, 
hands-on training or field trips; 

(C) Regular employment and instruction 
time shall not exceed 12 hours in a 24 
hour period; 

(D) A training course shall be completed 
within a two-week period; 

(E) All instructors and students shall be 
fluent in the language in which the 
course is being taught; 

(F) An interpreter shall not be used; 

(G) Upgrading worker accreditation to 
that of supervisor by completing only 
one day of initial training is not 
permitted. Separate initial training as 
a supervisor is required; 

(H) A single instructor is allowed only for 
a worker course. Other initial 
disciplines shall have a minimum of 
two instructors; 

(I) Instructor ratio for hands-on shall be 
no more than 10 students per 
instructor; 

(J) All course materials shall be in the 
language in which the course is being 
taught; 

(K) Each training course shall be 
discipline specific; and 

(L) Students shall be allowed to take an 
examination no more than twice for 
each course. After two failures, the 
student shall retake the full course 
before being allowed to retest. 

(7) Verify, by photo identification, the 
identity of any student requesting 
training. 

(8) For each course approved or deemed 
approved by the Program under 
Paragraph (a) of this Rule and taught in 
North Carolina, the training provider 
shall submit a completed renewal 
a pplication on a form provided by the 
Program. Effective January JL 1995, a 
renewal application shall be submitted 
prior to the next course offering and 
annually thereafter. If an annual 
training course renewal lapses, the 
provider shall submit a renewal 
application prior to offering the course 
again in North Carolina. 

(h) Training course providers shall permit 
Program representatives to attend, evaluate and 
monitor any training course, take the course 



examination and have access to records of training 
courses without charge or hindrance to the 
Program for the purpose of evaluating compliance 
with 40 CFR Fart 763, Subpart E, Appendix C 
and these Rules. The Program shall perform 
periodic and unannounced on-site audits of training 
courses. 

(i) In accordance with G.S. 130A-23, the 
Program may suspend or revoke approval for a 
training course for violation of this Rule and shall 
suspend or revoke approval upon suspension or 
revocation of approval by the Environmental 
Protection Agency or by any state with an 
Environmental Protection Agency-approved 
accreditation program. 

Statutory Authority G.S. 130A-5(3); 130A-447; 
P.L. 99-519. 

.0605 ASBESTOS CONTAINING 

MATERIALS REMOVAL PERMITS 

(a) No person shall remove more than 35 cubic 
feet (1 cubic meter), 160 square feet (15 square 
meters) or 260 linear feet (80 linear meters) of 
regulated asbestos containing material, without a 
permit issued by the Program. This permitting 
requirement is applicable to: 

(1) individual removals that exceed the 
threshold amounts addressed in this 
Paragraph; 

(2) nonscheduled asbestos removals 
conducted at an installation that exceed 
the threshold amounts addressed in this 
Paragraph in a calendar year of January 
1 through December 31. 

Other asbestos abatement activities are exempt 
from the permit requirements of G.S. 130A-449. 

(b) All applications shall be made on a form 
provided or approved by the Program. The 
application submittal shall include at least all of the 
information specified under the notification 
requirements of 40 CFR Part 61.145(b), Subpart 
M. Applications for asbestos containing material 
removal permits shall adhere to the following 
schedule. 

(1) Applications for individual asbestos 
removals shall be postmarked or 
received by the Program at least 10 
working days prior to the scheduled 
removal start date. For emergency 
renovation operations involving 
asbestos removal, the 10 working days 
notice shall be waived. An application 
for a permit for the emergency 
renovation operation shall be 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1023 



PROPOSED RULES 



postmarked or received by the Program 
as early as possible before, but not later 
than, the following working day. 
Permit applications for emergency 
renovation operations shall be 
accompanied by a letter from the owner 
or his representative explaining the 
cause of the emergency; 
(2) Applications for nonscheduled asbestos 
removals shall be postmarked or 
received by the Program at least 10 
working days before the start of the 
calendar year and shall expire on or 
before the last day of the same calendar 
year. Reports of the amount of 
regulated asbestos containing material 
removed shall be made at least 
quarterly to the Program. 

(c) Application for revision to an issued asbestos 
removal permit shall be made by the applicant in 
writing on a form provided by the Program and 
shall be received by the Program in accordance 
with the following: 

(1) Revision to a start date for a project 
that will begin after the start date stated 
in the approved permit shall be received 
on or before the previously stated start 
date or previously revised start date; 

(2) Revision to a start date for a project 
that will begin before the start date 
stated in the approved permit shall be 
received at least 10 working days 
before the new start date; 

(3) Revision to a completion date that will 
be extended beyond the completion date 
stated in the approved permit shall be 
received by the original or previously 
revised completion date; 

(4) Revision to a completion date that will 
be earlier than the completion date 
stated in the approved permit shall be 
received by the new completion date; 
and 

(5) Revisions to permits other than start or 
completion dates shall be submitted to 
the Program prior to initiating the 
activity which the revision addresses. 

(d) Copies — of the The following shall be 
maintained on site during removal activities and be 
immediately available for review by the Program: 

(1) the removal permit issued by the 
Program and all revisions with the 
Program's confirmation of receipt ; 

(2) applicable asbestos abatement design^ 
and project monitoring plan; and 



(3) photo identification cards issued by the 
Program for all accredited personnel 
performing removal asbestos 
management activities. 

(e) All permitted removal activities shall be 
conducted in accordance with 40 CFR Parts 61 and 
763, Subpart E, where applicable. 
Notwithstanding permit suspension or revocation 
if the removal activities are in violation of 
Department of Labor rules found at Chapter 7, 
Title 13 of the North Carolina Administrative 
Code, Department of Transportation rules found at 
Title 19A, of the North Carolina Administrative 
Code, or Solid Waste Management rules found at 
Chapter 13, Title 15A of the North Carolina 
Administrative Code, as determined by the 
agencies administering those Rules, respectively. 

(f) All permitted removals shall be conducted 
under the direct supervision of an accredited 
supervisor. The supervisor shall be on-site at all 
times when removal activities are being performed. 

(g) An asbestos abatement design shall be 
prepared by an accredited abatement designer for 
each individually permitted removal of more than 
3000 square feet (281 square meters), 1500 linear 
feet (462 meters) or 656 cubic feet (18 cubic 
meters), of regulated asbestos containing materials 
conducted in public areas. 

(h) In accordance with G.S. 130A-23, the 
Program may suspend or revoke the permit for any 
violation of G.S. 130A, Article 19 or any of the 
rules of this Section. The Program may also 
revoke the permit upon a finding that its issuance 
was based upon incorrect or inadequate 
information that materially affected the decision to 
issue the permit. 

Statutory Authority G.S. 130A-5(3); 130A-449; 
P.L. 99-519. 

.0606 FEES 

(a) The fee required by G.S. 130A-450 shall be 
submitted with an application for the asbestos 
containing material removal permit. The fees shall 
be as follows: 

(1) Fees for the removal of floor tiles., and 
cementitious asbestos containing 
wallboard or panels and asbestos 
containing roofing material shall be one 
percent of the contract price or ten 
cents ($0.10) per square foot, 
whichever is greater; 

(2) Fees for the removal of ceiling tiles 
shall be one percent of the contract 
price or ten cents ($0.10) per square 



1024 



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PROPOSED RULES 



(3) 



(4) 



(5) 



foot; whichever is greater; 
Fees for the removal of surfacing 
material, thermal system insulation and 
other asbestos containing materials shall 
be one percent of the contract price or 
twenty cents ($0.20) per square or 
linear foot; whichever is greater; 
Fees for demolition shall be a 
maximum of three hundred dollars 
($300.00). Demolition, for the 

purposes of this Rule only, means the 
act of razing a building or structure, or 
portion thereof, to the ground. 
Removal of regulated asbestos 
containing material from any 
undemolished portion of a building or 
structure shall be permitted as an 
individual asbestos removal; and 
An owner of any single family dwelling 
in which the owner resides or will 
reside after the asbestos removal is 
complete is exempt from permit fees. 
A permit shall not be issued until the required fee 
is paid. 

(b) The fee required by G.S. 130A-448(a) shall 
be submitted with an application for accreditation 
or reaccreditation. The amount of the fee shall be 
one hundred dollars ($100.00) for each category, 
except that the fee for persons applying for 
accreditation or reaccreditation as workers shall be 
twenty-five dollars ($25.00). However, if a 
person applies for accreditation or reaccreditation 
in more than one category per calendar year, the 
amount of the fee shall be one hundred dollars 
($100.00) for accreditation or reaccreditation in the 
first category and seventy-five ($75.00) for 
accreditation or reaccreditation in each remaining 
category, except for workers. A person shall not 
be accredited or reaccredited until the required fee 
is paid. 

£c) The fees required by G.S. 130A-448(b) shall 
be submitted with the application for each initial 
course approval and each renewal course approval . 
The amount of the fee shall be one thousand five 
hundred dollars ($1,500.00) for each initial course 
approval and two hundred fifty dollars ($250.00) 
for each renewal course approval . 

Statutory Authority G.S. 130A-5(3); 130A-448(a); 
130A-448(b); 130A-450; P.L. 99-519. 

.0607 ASBESTOS EXPOSURE 

STANDARD FOR PUBLIC AREAS 

(a) The maximum allowable ambient asbestos 
level in the air for public areas shall be: 



(1) 0.01 fibers per cubic centimeter as 
analyzed by phase contrast microscopy, 
or 

(2) arithmetic mean of less than or equal to 
70 structures per millimeter square as 
analyzed by transmission electron 
microscopy, or 

(3) a Z-Test result that is less than or equal 
to 1.65 as analyzed by transmission 
electron microscopy. 

(b) For individually permitted asbestos 
removals, ambient air sampling shall be conducted 
in public areas adjacent to the work area. Initial 
sampling shall be conducted on the day that 
regulated asbestos containing material removal 
begins. The sampling shall continue on a daily 
basis unless, or until, the supervising air monitor 
specifies differently. Potential public asbestos 
exposure shall be considered when determining the 
frequency and location of the sampling. 

(c) Clearance air sampling shall be conducted in 
accordance with Paragraphs (d) and (e) of this 
Rule for all permitted asbestos removal projects 
conducted in public areas. Clearance air samples 
shall be analyzed by: 

(1) transmission electron microscopy and 
comply with the levels specified under 
Subparagraph (a)(2) or (a)(3) of this 
Rule for each individually permitted 
removal of more than 3000 square feet 
(281 square meters), 1500 linear feet 
(462 meters), or 656 cubic feet (18 
cubic meters) of regulated asbestos 
containing material; or 

(2) transmission electron microscopy or 
phase contrast microscopy and comply 
with the levels specified in Paragraph 
(a) for all other permitted asbestos 
removals. 

(d) Phase contrast microscopy and transmission 
electron microscopy sampling and analysis 
methods shall be conducted in accordance with 40 
CFR Part 763, Subpart E. 

(e) Sample analysis for phase contrast 
microscopy or transmission electron microscopy 
samples shall be performed by a laboratory 
meeting the requirements of P.L. 99-519 and 40 
CFR 763 and accompanying appendices. 
Laboratories performing phase contrast microscopy 
analysis pursuant to this Rule shall have a rating of 
proficient by the American Industrial Hygiene 
Association's Proficiency Analytical Testing 
Program. Persons performing phase contrast 
microscopy analysis shall have successfully 
completed a NIOSH 582 or a NIOSH 582 



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1025 



PROPOSED RULES 



equivalent training course. Persons performing 
phase contrast microscopy analysis at the asbestos 
removal location shall be proficient in the 
American Industrial Hygiene Association's 
Asbestos Analysts Registry Program. 

(f) A final visual inspection shall be conducted 
by an accredited air monitor or an accredited 
supervising air monitor for all permitted asbestos 
removal removals project s conducted in public 
areas. This visual inspection shall be conducted 
prior to clearance air sampling. The final visual 
inspection shall assure that all asbestos containing 
residue, dust, and debris and asbestos 
contaminated equipment has been removed. 

(g) Any person performing ambient or clearance 
air sampling or visual inspection during an 
asbestos removal as specified under Paragraphs 
(b), (c), and (f) of this Rule shall be retained by 
the building owner. Neither the The accredited 
supervising air monitor nor accredited air monitor 
shall net be employed by the contractor hired to 
conduct the asbestos removal except that: 

(1) this restriction in no way applies to 
personal samples taken to evaluate 
worker exposure as required by 
Occupational Safety and Health Act; 
and 

(2) this restriction shall not apply when the 
contractor and air monitor have 
disclosed their association to the 
building owner and the building owner 
approves this association in writing. 

(h) For air sampling and visual inspections 
conducted under Paragraphs (b), (c), and (f) of this 
Rule, the supervising air monitor shall: 

(1) Prepare, prior to the removal start date, 
an abatement project monitoring plan 
which takes into consideration at least 
the abatement project scope of work, 
building use, occupant locations and 
their potential for exposure to airborne 
asbestos fibers, type of asbestos 
containing material, and the asbestos 
abatement design, including work 
practices and engineering controls. The 
plan shall include air sampling 
procedures, air sample locations and air 
sampling frequency. This sampling 
plan may be amended by the 
supervising air monitor as needed. 
This requirement shall apply to each 
individually permitted removal of more 
than 3000 square feet (281 square 
meters), 1500 linear feet (462 meters), 
or 656 cubic feet (18 cubic meters) of 



regulated asbestos containing materials; 

(2) Ensure that ambient air sampling results 
shall be available on-site: 

(A) within 24 hours of sample collection 
and analysis by phase contrast 
microscopy; 

(B) within 48 hours of sample collection 
and analysis by transmission electron 
microscopy; 

(3) Personally inspect any individually 
permitted asbestos removal project: 

(A) that exceeds 10 working days in 
length, but does not exceed 30 
working days, at least once; or 

(B) that exceeds 30 working days in 
length, at least once in the first 30 
working days and at least once every 
30 working days thereafter; 

(4) Prepare a written, signed and dated 
report documenting all site visits made 
to the removal, final visual inspection, 
and all ambient and clearance air 
sampling conducted. This report shall 
be supplied by the supervising air 
monitor to the building owner. The 
building owner shall supply a copy of 
the report to the Program upon request. 

Statutory Authority G.S. 130A-5(3); 130A-446; 
P.L. 99-519. 

.0609 ASBESTOS NESHAP FOR 

RENOVATIONS AND DEMOLITIONS 

(a) "Each owner or operator of a renovation or 
demolition activity," as defined in 40 CFR 61.141, 
shall comply with all applicable requirements of 
the Asbestos National Emission Standards for 
Hazardous Air Pollutants (NESHAP) for 
renovations and demolitions as found in 40 CFR 
Part 61, Subparts A and M 40 CFR Part 61, 
Subparts A and M are hereby incorporated by 
reference, including any subsequent amendments 
and editions. This document is available for 
inspection at the Department of Environment. 
Health, and Natural Resources, Asbestos Hazard 
Management Branch, 441 North Harrington Street, 
Raleigh. North Carolina. Copies may be obtained 
free of charge by writing the Asbestos Hazard 
Management Branch, P.O. Box 27687. Raleigh, 
North Carolina 27611. 

fb) All reports, applications, submittals, and 
other communications required to be submitted 
under Paragraph (a) of this Rule shall be submitted 
to the Director, Division of Epidemiology, rather 
than to the Environmental Protection Agency, 



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PROPOSED RULES 



except that such asbestos NESHAP documents 
pertaining to renovations and demolitions within 
local air pollution program jurisdictions shall be 
submitted to the local program. 

Statutory Authority G.S. 130A-451. 

.0610 LOCAL AIR POLLUTION 
PROGRAMS 

The Department shall authorize local air pollu- 
tion programs certified as of October _!_, 1994, 



pursuant to G.S. 143-215.1 12 to enforce the 
asbestos NESHAP for renovations and demolitions 
so long as the local program maintains its certifica- 
tion pursuant to G.S. 143-215.112. 

Statutory Authority G S. 130A-452. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARD 

CHAPTER 14 - BOARD OF 
COSMETIC ART EXAMINERS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. State Board of Cosmetic 
Art Examiners intends to amend rules cited as 21 
NCAC 14F .0007; 14G .0003; 141 .0103; 14J 
.0202 and .0205; adopt 141 .0401 - .0402. 

Ihe proposed effective date of this action is 
January 1, 1995. 

Ihe public hearing will be conducted at 8:00 
a.m. on October 18, 1994 at the Grove Towers, 
5th Floor, 1110 Navaho Drive, Raleigh, N.C. 
27609. 

Reason for Proposed Action: 

21 NCAC 14F .0007, 14G .0003, 141 .0103, 14] 

.0202 & .0205 - To bring rules up to date. 

21 NCAC 141 .0401 - .0402 - To enact rules for a 

Board policy. 

i^omment Procedures: The record shall be open 
for 30 days to receive written comments. Written 
comments should be received by the N.C. State 
Board of Cosmetic Art Examiners through Novem- 
ber 2, 1994 to be considered as part of the hearing 
record. Comments should be addressed to Dee 
Williams, N. C. State Board of Cosmetic Art Exam- 
iners, 1110 Navaho Drive, Raleigh, N.C. 27609. 



Requests to speak must be in writing and received 
prior to the hearing. Speaking time is 5 minutes. 

SUBCHAPTER 14F - RULES AND 
REGULATIONS GOVERNING THE 
LICENSING OF BEAUTY SALONS 

.0007 DIMENSIONS OF BEAUTY SALON 

A beauty salon shall maintain at least five feet of 
space between each styling chair from the center to 
the center of each chair, and shall have at least 
two feet of space from each chair to the wall of 
the salon, front and back. This dimension require- 
ment does not apply to a non-styling shampoo 



Statutory Authority G S. 88-23. 

SUBCHAPTER 14G - REQUIREMENTS 

FOR THE ESTABLISHMENT OF 

COSMETIC ART SCHOOLS 

.0003 SPACE REQUIREMENTS 

(a) The Cosmetic Art Board will issue letters of 
approval only to cosmetology schools that have at 
least 3,000 2180 square feet of inside floor space 
for 20 stations or 3240 square feet of inside floor 
space for 30 stations located within the same 
building. As an exception, a school may have a 
recitation room located in an adjacent building or 
another building within 500 feet of the main 
cosmetology building. 

(b) Cosmetology schools approved with 3,000 
2180 square feet of inside floor space may enroll 
no more than €0 50 students at one time, and for 
each student enrolled in addition to 60 50 students, 
50 square feet of inside floor space must be pro- 
vided. Cosmetology schools a pproved with 3240 
square feet of inside floor space may enroll no 
more than 60 students at one time, and for each 
student enrolled in addition 60 students, 50 square 
feet of inside floor space must be provided. For 
purpose of this Rule, the day and night classes 
shall be counted as separate enrollments. 

(c) In addition each cosmetology school must 
have 30 hairdressing stations, arranged to accom- 
modate not less than 30 students and arranged so 
that the course of study and training in cosmetolo- 
gy, as prescribed by the Board, may be given. All 
stations must be numbered numerically. 

(d) Cosmetology schools must also have a 
beginner department containing sufficient space to 
comfortably accommodate at least ten students and 
having at least 40 inches between mannequins. 

(e) The Board will issue letter of approval only 



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1027 



PROPOSED RULES 



to manicurist schools that have at least 1,000 
square feet of inside floor space located within the 
same building. 

(f) Manicurist schools with 1 ,000 square feet of 
inside floor space shall enroll no more than 20 
students at one time, and for each student enrolled 
in addition to 20 students, 50 square feet of inside 
floor space must be provided. 

(g) In addition, manicurist schools must have ten 
manicurist tables and chairs a minimum of two feet 
apart, side to side, arranged to comfortably accom- 
modate ten students. 

Statutory Authority G. S. 88-23. 

SUBCHAPTER 141 - OPERATIONS 
OF SCHOOLS OF COSMETIC ART 

SECTION .0100 - RECORD KEEPING 

.0103 INSPECTION REPORTS AND 

REPORTS OF STUDENTS HOURS 

(a) In addition to such other reports as may be 
required by the Board, cosmetic art schools shall 
report to the Board or its authorized agent, upon 
inspection of the cosmetic art school and at other 
times upon specific request, the names of all 
students currently enrolled and the hours complet- 
ed by each. 

(b) The owner or manager of the cosmetic art 
school shall read each inspection report made of 
the school by an authorized agent of the Board to 
determine that the information on the inspection 
report is correct and shall sign the report. If any 
part of the information on the report is incorrect, 
it shall be corrected by the authorized agent of the 
Board or an exception to the report signed by the 
owner or manager shall be attached to the report. 

(e) — All cosmetic art school s shall send a report 
of all hours earned by each s tudent during the 
preceding month to the Board by the 15th of each 
month covering the hours earned. 

{4) — Reports shall be mailed in on forms ap 
proved by the Board. 

(c) fe)The Board shall be notified by letter prior 
to demonstrators, lecturers or observers being in 
the school. 

Statutory Authority G. S. 88-23; 88-30. 

SECTION .0400 - LICENSURE OF 

INDIVIDUALS WHO HAVE BEEN 

CONVICTED OF A FELONY 

.0401 APPLICATION FOR LICENSURE 



BY INDIVIDUALS WHO HAVE BEEN 
CONVICTED OF A FELONY 

(a) In addition to other requirements, any appli- 
cant who has been convicted of a felony shall 
supply the following: 

(1) A statement of the facts of the crime 
accompanied by a certified copy of the 
indictment (or, in the absence of an 
indictment, a copy of the "information" 
that initiated the formal judicial pro- 
cess), the judgment and the commit- 
ment order for each felony for which 
there has been a conviction. 

(2) A listing of each place of residence for 
the applicant since the date of convic- 
tion. The applicant shall give the spe- 
cific address by city or town, county, 
and state, and the specific dates for 
each residency. 

(3) A copy of the applicant's restoration of 
rights certificate, if applicable. 

(4) At least three letters attesting to the 
applicant's character from individuals 
unrelated by blood or marriage. If 
available, one of these letters must be 
from someone familiar with the 
applicant's cosmetology training and 
experience, one from the applicant's 
probation or parole officer, and one 
from the applicant's vocational 
rehabilitation officer. If letters from 
persons in these positions are 
unavailable, the applicant shall submit 
an explanatory statement as to why they 
are unavailable. 

(5) The names and addresses of at least 
three other unrelated persons who have 
known the applicant for three or more 
years. 

(6) The name and address of the applicant's 
current or last employer. 

(7) A brief summary of the applicant's 
personal history since conviction 
including, if applicable, date of release, 
parole or probation status, employment, 
and military service. 

(8) Records of any cosmetology or 
manicurist school disciplinary actions. 

(9) A description of any pending criminal 
charges with a copy of the indictment 
or, if there is not yet an indictment, the 
arrest warrant for each pending charge. 

(10) Any other information which in the 
opinion of the applicant would be useful 
or pertinent to the consideration by the 



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PROPOSED RULES 



Board of the a pplicant's request. 
£b) If a conviction was for an offense involving 
habitual drug or alcohol abuse, the applicant shall 
also provide verifiable evidence showing that he or 
she is drug/alcohol free. Examples of evidence 
which will be considered are: 

(1) enrollment in an on-going licensed 
treatment program, 

(2) drug analysis test results, and 

(3) certification of completion of a licensed 
treatment program. 

(c) The Board will not issue any license to an 
applicant for licensure who has been convicted of 
a felony and is still incarcerated at the time of the 
application. 

(d) No a pplicant who has been convicted of a 
felony can be scheduled for an examination before 
the Board can review the application- 



individual reviewed; and 
(3) is not a final agency decision. 

(d) A copy of the information submitted by. the 
individual shall be sent by the Board to the school 
the individual attends or intends to attend. 

(e) An individual who has obtained a 
determination that the individual's felony 
conviction or convictions would not be held 
sufficient to cause the Board to deny an application 
for a license shall update the information required 
by 2J. NCAC 141 .0401 in any subsequent 
application for a license. If such an individual 
a pplies for the license specified in the preapplica- 
tion review request within two years of the request 
and the information submitted with the a pplication 
shows no change since the preapplication review, 
the application will not need additional review by 
the Board at a Board meeting. 



Statutory Authority G. S. 88-23. 



Statutory Authority G. S. 88-23. 



.0402 REQUESTS FOR PREAPPLICATION 
REVIEW OF FELONY CONVICTIONS 

(a) An individual who intends to begin a course 
of study at a cosmetic art school or is currently 
attending cosmetic art school may a pply to the 
Board at any time for a preapplication review of 
the individual's felony conviction or convictions. 
The Board will allow only one such request per 
individual per type of license. 

(b) To obtain a preapplication review, the 
individual seeking review shall write a letter to the 
Board specifically asking for a preapplication 
review and explaining the individual's reason for 
the request, including the name of the school the 
individual attends or intends to attend and the 
license the individual intends to seek. The 



SUBCHAPTER 14J - COSMETOLOGY 
CURRICULUM 

SECTION .0200 - ADVANCED 
DEPARTMENT 

.0202 PRACTICAL WORK FOR 
ADVANCED STUDENTS 

(a) The hours earned in the advanced department 
must be devoted to study and live model perfor- 
mance completions. 

(b) Work in this department may be done on the 
public. Students with less than 300 hours credit 
must not work in this department and are not 
allowed to work on the public. 

The (c) A list of names of students eligible for work 



individual shall also provide the information 
required by 21 NCAC 141 .0401. In reviewing 
the material submitted, the Board shall determine 
whether, as of the date of the request, the felony 
conviction or convictions are or are not sufficient 
to cause the Board to deny an application for a 
license and shall notify the individual in writing of 
its determination. 

(c) A determination that as of the date of the 
request, the felony conviction or convictions are 
sufficient to cause the Board to deny an application 
for a license: 

(1) shall have no effect on an individual's 
ability to attend a cosmetic art school, 
take an examination administered by the 
Board, or apply for a license: 

(2) is not binding on the Board with respect 
to any future application from the 



on the public mu s t be arranged alphabetically and 
patron work must be assigned to each student in 
turn. 

{i) — Appointment books cannot be u s ed nor 
requests granted for any one s tudent. 

(c) {e)All work done by students on the public 
must be checked by the cosmetology teacher as the 
work is being performed and after the service has 
been completed so that the teacher may point out 
errors to the student in order that they may be 
corrected. 

Statutory Authority G. S. 88-23. 

.0205 LIVE MODEL PERFORMANCE 
REQLTREMENTS 

(a) The following live model performance 
completions must be done by each student in the 



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1029 



PROPOSED RULES 



advanced department before the student is eligible 
to take the cosmetologist's examination. Sharing 
of performance completions will not be allowed. 
Credit for a performance can only be given to one 
student. These performances can only be done on 
live models : 

(1) hair and scalp treatments— 30 hours — 
15 performance completions; 

(2) hairstyling and shampooing— 194 hours 
— 150 performance completions; 

(3) tinting and bleaching— 50 hours -- 6 
performance completions; 

(4) frosting and streaking— 20 hours — 4 
performance completions; 

(5) temporary rinses— 10 hours — 20 
performance completions; 

(6) semi permanent rinses— 5 hours ~ 4 
performance completions; 

(7) cold permanent waving— 150 hours — 20 
performance completions; 

(8) marcelling, croquignole and permanent 
relaxing— 35 hours— 15 performances 
completions ; 

(9) facials, massages, packs, eyebrow 
arching— 10 hours -- 10 performance 
completions; 

(10) lash and brow tinting— 10 hours -- 4 
performance completions; 

(11) manicuring and hand and arm 
massage— 20 hours — 20 performance 
completions; 

(12) hair shaping— 100 hours — 25 perfor- 
mance completions; 

(13) wig care and styling— 4 hours — 2 per- 
formance completions; and 

(14) marcel curling iron and blow dryers— 10 
hours— 10 performances completions . 

(b) Certification of these live model performance 
completions will be required along with the appli- 
cation for the examination. 

Statutory Authority G S. 88-23. 

TITLE 24 - INDEPENDENT 
AGENCIES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the State Health Plan Purchasing 
Alliance Board intends to adopt rules cited as 24 
NCAC5 .0201 - .0207 and .0401 - .0419. 

1 he proposed effective date of this action is 
January 1, 1995. 



1 he public hearing will be conducted at 10:00 
a.m. on November 2, 1994 at the Insurance Build- 
ing, 112 Cox Avenue, 2nd Floor, Raleigh, NC. 

txeason for Proposed Action: To adopt rules to 
implement the provisions in Article 66 of Chapter 
143 of the General Statutes as they relate to health 
plan alliances in participating small employers. 

Lsomment Procedures: Any person may comment 
either orally or in writing at the hearing. All 
other comments must be submitted to the Board no 
later than November 2, 1994. Written comments 
should be directed to Robert E Joyce, 112 E. 
Hargett Street, Suite 101, Raleigh, NC 27601. 



CHAPTER 5 - STATE HEALTH 
PLAN PURCHASING ALLIANCE BOARD 

SECTION .0200 - ALLIANCES 

.0201 PURPOSE 

These Rules implement the provisions specified 
in G.S. 143. Article 66, the Health Care Purchas- 
ing Act, as they relate to health plan purchasing 
alliances. 



Statutory Authority G.S. 
and following.) 



143-66; (G.S. 143-621 



.0202 ESTABLISHMENT OF ALLIANCE 
MARKET AREAS 

(a) Pursuant to authorization under G.S 143- 
626(1). the Board shall establish market areas for 
regional alliances according to the following 
criteria: 

(1) The proposed market area contain 
approximately 600,000 residents or 
more in population within its standard 
metropolitan area plus adjoining re- 
gions. 

(2) The small business community has 
demonstrated support for inclusion in 
the proposed market area. 

£b) The Board may choose to establish bound- 
aries for a market area after receiving a formal 
proposal from a community sponsor to form an 
alliance in a particular region. The Board may also 
choose to establish boundaries for a market area 
before receiving such formal proposals from 
community sponsors. 

(c) The Board's establishment of market areas is 



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PROPOSED RULES 



for administrative and organizational purposes only 
and shall not be construed to impose any geo- 
graphical restrictions or limitations on the provi- 
sion of health insurance or health care to small 
businesses, their employees or dependents or any 
other persons. 

Statutory Authority G.S. 143-626. 

.0203 CERTIFICATION, 

RECERTIFICATION AND 
DECERTIFICATION 

(a) Certification of Alliance Status. Before 
beginning operation, an alliance formed by a 
community sponsor shall complete and submit a 
certificate of approval to the Board. The certificate 
shall include Form ASHPPA-2-1A, incorporated 
herein by reference, and the following items: 

(1) Confirmation of the Board's approval of 
the alliance's community sponsor. 

(2) A current certificate of status as a non- 
profit corporation, issued by the Secre- 
tary of State's office. 

(3) Articles of incorporation, which shall 
include the following provisions: 

(A) Corporate purposes that are consistent 
with and limited to the purposes of 
G.S. 143, Article 66. 

(B) Corporate powers that prohibit engag- 
ing, either directly or through related 
or affiliated entities, in activities 
inconsistent with the purposes of G.S. 
143. Article 66. 

(4) A notarized statement from each direc- 
tor on Form #SHPPA-2- 1 B, incorporat- 
ed herein by reference, setting forth the 
director's name, occupation, by whom 
appointed, and certifying that the direc- 
tor is in compliance with the financial 
interest restrictions of G.S. 1 43-625 (i) 
and (j), that the director has reviewed 
the Board's regulations as well as North 
Carolina statutory law regarding alli- 
ances and the small employer market 
and understands his or her obligation to 
comply with them, and that the Alliance 
Board will require its executive director 
and all executive personnel to do the 
same. 

(5) Bylaws of the alliance, certified by the 
custodian of records to be a true and 
accurate copy of bylaws currently in 
effect. Bylaws shall address topics 
including but not limited to: 

(A) Conditions of alliance membership 



which are consistent with G.S. 143, 



Article 66. 
(E) Board of Directors, including manner 
of election by member small employ- 
ers, following the a ppointment of the 
initial directors; removal and replace- 
ment: legal duties and responsibilities: 
notice of meetings: a pproval of quali- 
fied independent third party contracts, 
board action without a meeting and 
telephone meetings. 
(C) Conflict of interest rules for directors, 
which shall require: 
(i) That no director may be employed 
by, affiliated with, an agent of, or 
otherwise a representative of any 
health care provider or carrier. 
That no director may hold securi- 



m 



(Hi) 



fjv) 



ties in health care businesses in 
amounts exceeding those permit- 
ted under G.S. 143-625Q), 
Disclosure to the Alliance Board 
of any potential or apparent con- 
flicts of interest, and 
Abstention from discussions and 
voting relating to any contracts 
with parties who are, or may 
a ppear to be^ related or affiliated 



IB) 



parties. 
Prohibition 



against application of 



alliance assets to the benefit of any 
entity in a manner inconsistent with 
the North Carolina Not For Profit 
Corporation Act. 

(E) Maintenance and inspection of corpo- 
rate books and records and alliance 
contracts, which authorizes access by 
the board upon reasonable written 
notice. 

(F) Effective date of operation. 

(G) Grievance procedures to be used in 
resolving disputes between member 
small employers and the alliance and 
disputes between an AHC and the 
alliance. 

(6) A schedule identifying anticipated 
sources of revenue to finance alliance 
operations. 
(b) Recertification of Alliance Status. On July 
I of each year after initial certification, the alli- 
ance shall complete and submit a recertification 
approval to the Board. The recertification shall 
include Form #SFTPPA-2-2A, incorporated herein 
by reference, and the following items: 

(1) A current certificate of status as a non- 



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1031 



PROPOSED RULES 



profit corporation, issued by the Secre- 
tary of State. 
(2) A notarized statement on Form 
ASHPPA-2-2B, from any director who 
has not previously submitted such a 
statement setting forth the information 
set forth in Subparagraph (a)(4) of this 
Rule. 

An annual program 
which shall 



131 



£4} 



15} 



[61 



and financial 



report, 
summary 



encompass a 



of the quarterly data 
submitted pursuant to Rule .0204(a) of 
this Section; a description of the 
alliance's accounting procedures or any 
changes thereto that did not appear in a 
previous recertification; a list of the 
type and resolution of member small 
employer and AHC grievances not 
listed in a previous recertification; and 
an annual financial report consisting of 
the approved operating budget, 
including a projected statement of 
expenses and revenue for the current 
fiscal year, and independent audited 
financial statements of the prior fiscal 
year's financial operations. 
Copies of all alliance marketing 
materials made available to member 
small employers. 

a record demonstrating the alliance's 
compliance with the member services 
plan approved by the Board pursuant to 
Rule ,0206 of this Sec tion. 

not 



Any other material changes 
appearing in a previous recertification. 
(c) Decertification Procedure. 

(1) The Board may decertify an alliance if 
it finds that the alliance has materially 
violated the provisions of G.S. 143. 
Article 66, rules adopted by the Board, 
or provisions of the alliance's own 
bylaws, or the member services plan 
a pproved by the board pursuant to Rule 
.0206 of this Section. 

(21 The Board shall adhere to the following 
process regarding an alliance's viola- 
tion: 

(A) It shall advise any alliance in writing 
of any such material deficiency by 
certified mail, return receipt requested 

(B) Within 10 working days of receiving 
notice of the deficiency, the alliance 
shall inform the Board in writing of 
all actions being taken to correct the 
deficiency and shall further notify the 



Board as soon as the deficiency has 
been corrected. 

(C) The Board may take other necessary 
steps consistent with its statutory 
authority to assure that an alliance's 
plan to correct the deficiency is suffi- 
cient and that the alliance's perfor- 
mance in correcting the deficiency is 
satisfactory. 

(D) If the alliance's corrective actions and 
further plans to correct the deficiency 
are determined by the Board not to be 
satisfactory, 60 days following the 
alliance's receipt of notice of such 
failure the Board may decertify the 
alliance, by notice to the alliance of 
such decertification sent by certified 
mail, return receipt requested. 

(3) In decertifying an alliance for any 
reason, the Board shall take necessary 
actions consistent with its statutory 
authority, including a ppointment of a 
new board of directors for a reconstitut- 
ed alliance, recommending that another 
alliance or other alliances assume the 
powers and duties of the decertified 
alliance, assumption of the alliance's 
responsibilities or duties or a ppointment 
of a temporary administrator to assure 
that the alliance's responsibilities con- 
tinue to be performed. 

Statutory Authority G.S. 143-626. 

.0204 BOARD MONITORING 
RESPONSIBILITIES 

(a) Not less than 45 days after the close of each 
calendar quarter, each alliance shall submit for the 
Board's review a quarterly report including all the 
information specified in G.S. 143-626(4). 

(b) The Board shall actively monitor the activi- 
ties of each alliance to assure the following: 

(1) that alliance actions affecting health 
care market competition are not for 
private interests; 
that each alliance continues to meet the 



121 
13} 
14} 



criteria for certification; 

that each alliance adheres to its bylaws; 

and 

that alliance actions are consistent with 

the legislative intent found in G.S. 143- 

621. 
(c) The Board shall annually review the consum- 
er costs and health care quality within each alli- 
ance and among all alliances, to assure compliance 



1032 



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October 3, 1994 



PROPOSED RULES 



with the legislative intent of G.S. 143-621. 
Statutory Authority G.S. 143-626. 

.0205 MEMBER SERVICES 

(a) Pursuant to the procedure established in Rule 
.0206 of this Section, members services provided 
through an alliance shall include: 

(1) development, publication, distribution, 
collection, and processing of alliance 
membership a pplication forms: 

(2) verification of small employer member- 
ship a pplication forms for completeness 
and accuracy; 

(3) verification of employer eligibility: 

(4) establishment and maintenance of the 
alliance membership database: 

(5) marketing strategies to inform small 
employers of the benefits of alliance 
membership and the services available 
through the alliance: 

(6) provision to alliance members upon 
request of lists of licensed insurance 
agents or brokers: 

(7) preparation and distribution of AHC 
comparison sheets: 

(8) acceptance and processing of alliance 
member inquiries: 

£9} receipt and processing of employee 
enrollment forms, including verification 
of employee eligibility and editing of 
enrollment forms for accuracy and 
completeness; 

(10) collection and maintenance of alliance 
member employee census data; 

(11) collection of premium rate quotes; 

(12) verification and monitoring of minimum 
employee participation and employer 
contribution requirements; 

(13) confirmation of coverage dates to alli- 
ance members; 

(14) transmission of employee enrollment 
information (including Medicare prima- 
ry_ or secondary status) to AHCs; 

(15) billing and collection of premiums and 
membership fees from alliance mem- 
bers, and those former members contin- 
uing coverage; 

(16) payment of premiums to AHCs; and 

(17) all other services included in the mem- 
ber services plan authorized by the 
Board pursuant to Rule .0206 of this 
Section. 

(b) An alliance shall assume responsibility for 
collecting premiums from member small employers 



and distributing them to participating AHCs. In 
performing this function, an alliance shall collect 
both the portions of the premium paid by. the 
employer and enrollee. To finance the cost of 
uncollected premiums, an alliance may collect a 



bad debt surcharge on alliance members or miti- 
gate the need for such a surcharge through a 
prepayment and disenrollment policy a pproved by 
the Board. 

Statutory Authority G.S. 143-626; 143-628. 

.0206 COORDINATION OF MEMBER 
SERVICES AMONG ALLIANCES 

The Board shall select an administrator to assist 
all alliances in matters relating to the administra- 
tion of member services. The selected administra- 



tor shall possess developed expertise in alliance 
administration and its marketing programs shall 
include involvement with agents and brokers. The 
Board shall contract with the selected administrator 
to develop a coordinated administration plan with 
statewide standards for all alliances. 

Statutory Authority G.S. 143-626; 143-628. 

.0207 REQUESTS FOR PARTICIPATION BY 
AHCs 

An alliance's request for AHC participation shall 
contain at least the following provisions: 

(1) A request to AHCs for the submission of 
premium rates through qualified health 
care plans to be offered through the 
alliance. 

(2) A provision stipulating that an AHCs 
response will be treated as confidential 
until the alliance simultaneously opens 
pursuant to notice all premium rate infor- 
mation submitted by AHCs. 

(3) A provision requiring an AHC and its 
agents shall not divulge its proposal to 
other AHCs, their agents, or other con- 
sultants and that the AHC will not com- 
municate in any other manner concerning 
its response with other AHCs offering 
responses until the alliance's public open- 
ing of the AHCs' responses. 

(4) A provision requesting all information 
necessary for an alliance's member ser- 
vice plan a pproved by the Board pursuant 
to Rule .0206 of this Section. 

(5) A provision requiring a notarized state- 
ment from an AHC that its submitted 
premium rates are in compliance with the 
community rating methodology required 



9:13 



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October 3, 1994 



1033 



PROPOSED RULES 



in the small employer market at large and 
that it will assist in the marketing of its 
plan or plans to all eligible enrollees of 
an alliance. 

Statutory- Authority G.S. 143-628; 143-629. 

SECTION .0400 - SMALL EMPLOYER 
PARTICIPATION IN ALLIANCES 



(8) "Program participation fee" means the 
amount that an alliance charges an mem- 
ber small employer to participate in the 
alliance. 

(9) "Qualified small employer" means a 
small employer that an alliance has deter- 
mined to be in compliance with the par- 
ticipation requirements of Rule .0404 of 
this Section. 



.0401 PURPOSE 

These Rules implement the provisions specified 
in G.S. 143, Article 66, the Health Care Purchas- 
thev 



ing Act, as 
employers. 



relate to participating small 



Statutory Authority G.S. 143-626. 

.0402 DEFINITIONS 

The definitions in this Rule shall apply to this 
Section: 

(1) "Community Partner" is a non-profit 
business organization that operates for the 
purpose of furthering economic opportu- 
nities for small businesses in the alliance 
market area and that has agreed to work 
in partnership with the community spon- 
sor to promote its alliance. 
"Disenroll" means termination of cover- 



12} 
13} 



141 
ill 

£6) 

ill 



age in the alliance. 

"Employer monthly payment" means the 
dollar amount owed each month by the 
member small employer to the alliance. 
It includes program participation fees, 
any required late fees, any required 
reinstatement fees, any required service 
fees for agents and brokers, and the sum 
of individual premiums. Each of these 
elements shall be listed separately on the 
employer's monthly bill. 
"Enroll" means acceptance into an alli- 
ance. 

"Enrolled employee" means an eligible 
employee who is enrolled in a qualified 
health care plan through an alliance. 
"Enrollee" means an eligible employee or 
dependent of an eligible employee who .is 
enrolled in a qualified health care plan 
through an alliance. 

"Individual premium" means the dollar 
amount that a member small employer 
owes to an alliance for coverage of an 
enrolled employee and any enrolled 
dependents. This includes the employer 
share and any applicable employee share. 



Statutory Authority G.S. 143-626; 143-628. 

.0403 APPLICATION FOR MEMBERSHIP 

(a) An application from a small employer 
(including self-employed individuals or sole propri- 
etorship) for participation in an alliance shall 
contain the following: 

(1) The small employer's complete name. 

(2) The small employer's current business 
address including unit number, street, 
city, county, state, and zip code. 

(3) The address to which the alliance 
should send bills for the small 
employer's monthly payments, if 
different from Subparagraph (a)(2) of 
this Rule. 

The small employer's federal tax 
identification number (or proof of 



14) 

15} 
16} 
01 
18} 



employer's telephone 



application). 

The small 

number. 

The name, position and phone number 

of a designated contact person. 

The industry type of the small 

employer. 

A copy of the Federal W-4 forms or 

employer payroll records for all 

employees. 

(9) The name and address of the small 
employer's worker's compensation 
carrier, and the policy number. 

(10) The number of eligible employees 
employed by the small employer 
(residents of North Carolina and total) 
and the number of eligible employees 
applying for enrollment in the alliance. 

(1 1) A declaration by the member small 
employer that the small employer will 
follow the rules and regulations of the 
alliance as well as North Carolina 
statutory law pertaining to alliances and 
the small employer market. 

(12) Either the agent/broker payment request 
or the small employer certification 
specified in Rule .0413(c) of this 



1034 



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October 3, 1994 



PROPOSED RULES 



Section. 

(13) An indication of which qualified health 
care plans the small employer plans to 
make available to eligible employees. 

(14) A check or money order for an amount 
equal to the initial one month employer 
monthly payment. 

(15) Any other information a pproved by the 
Board pursuant to the member services 
plan authorized under Rule .0206 of 
this Chapter. 

(16) An a pplication from a self-employed 
individual or sole proprietor must also 
include: 

(A) Proof of being in business for at least 
30 days prior to attaining member 
status. 

(B) Show evidence of taxable income 
from some current or other business 
activity in one of the two previous 
years as indicated on IRS Form 1040, 
Schedule C or F 

(b) An application from a small employer shall 
also include the following for each eligible 
employee who is a pplying for enrollment: 

(1) The employee's full name. 

(2) The employee's current residence ad- 
dress including house or unit number, 
street, city, county, state, and zip code. 

(3) The employee's home and work phone 
numbers. 

(4) The employee's date of birth. 

(5) The employee's gender. 

(6) The employee's social security number. 

(7) The employee's date of employment 
with the small employer, the number of 
hours in the employee's normal work- 
week, and the date, if different from 
the employment date, that the employee 
began a normal workweek of at least 30 
hours. 

(8) an employee's current or most recent 
prior medical insurance or health bene- 
fits coverage, including coverage under 
the federal Medicare program. 

(9) The full names, dates of birth, gender, 
social security numbers, if existing, and 
relationship of any dependent to be 
covered and the same kind of medical 
insurance information for any depen- 
dent as specified in Subparagraph (b)(8) 
of this Rule for employers. 

(10) The qualified health care plan of an 
Accountable Health Carrier that is 
covering the enrollees (the employee 



and their dependents). 
(11) A declaration by the eligible employee 
stating the following: 

(A) The employee will follow the rules 
and regulations of the alliance. 

(B) The employee has reviewed the ser- 
vices and coverage offered under and 
the premium rates applicable to the 
qualified health care plan(s) which the 
employee's employer has selected. 

(C) The employee resides in the service 
area of his/her selected AHC. 

(D) The employee will abide by the rules, 
utilization review process, and dispute 
resolution process of the selected 
accountable health carrier which he or 
she has selected. 

(E) The employee meets the requirements 
to be an eligible employee. 

(c) An alliance shall deem an application lacking 
any of the pertinent information required in Para- 
graphs (a) and (b) of this Rule as incomplete and 
shall return the application to the small employer. 
The alliance shall include a notice explaining what 
specific information in the a pplication is incom- 
plete. 

Statutory Authority G.S. 143-626. 

.0404 PARTICIPATION REQUIREMENTS 

(a) The qualified small employer shall partici- 
pate in the alliance for the market area where its 
principal place of business is located. If an other- 
wise eligible employee resides in another market 
area where an alliance has been established, the 
employees may choose a qualified health care plan 
sponsored by an AHC participating in the alliance 
in the employer's area of residence. If an other- 
wise eligible employee resides in another market 
area without an alliance, the employee may partici- 
pate in the alliance where an employer's principal 
place of business is located if an accountable 
health carrier offers through that alliance a quali- 
fied health care plan which serves the employee's 
area of residence. Application for such coverage 
shall be coordinated through the alliance in the 
area where this employer's principal place of 
business is located. Accountable health carriers 
may also agree to provide otherwise eligible 
employees residing outside of North Carolina with 
coverage through the alliance where the 
employer's principal place of business is located. 

(b) An alliance shall require each member small 
employer to enroll no less than fifty percent and 
no more than seventy percent of ]ts total eligible 



9:13 



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October 3, 1994 



1035 



PROPOSED RULES 



employees. The employee total shall include any 
employee who participates or is eligible to 
participate in a qualified health care plan through 
any alliance, except for any employee who already 
has qualifying existing coverage. For purposes of 
this Rule, "qualifying existing coverage" means 
health coverage that an employee receives under 
Medicare, Medicaid, or as a dependent under 
another employer's health insurance or health 
benefit arrangement which, according to the 
Department of Insurance, provides coverage equal 
to or exceeding benefits under the basic health care 
plan. 

(c) An alliance shall require that each member 
small employer does the following: 

(1) contributes to the payment of each plan 
covering an enrolled employee in an 
amount no less than fifty percent of the 
lowest cost plan selected by the em- 
ployer for coverage of individuals of 
the same age and gender and residing in 
the same county. 

(2) inform all potentially eligible employees 
of the employer's intention to purchase 
coverage through the alliance and pro- 
vide them the opportunity to app ly for 
coverage. 

(3) provide all potentially eligible employ- 
ees with at least 30 calendar days to 
decide whether to apply for coverage. 

(4) inform all potentially eligible employees 
of the amount the employer will con- 
tribute toward the purchase of cover- 
age. 

Statutory Authority G.S. 143-626. 

.0405 ANNUAL RENEWAL 

A member small employer must annually provide 
to the alliance a sworn affidavit reverifying the 
status of eligible employees and those with qualify- 
ing existing coverage as defined in Rule .0404fb) 
of this Section. This information shall include a 
listing of all eligible employees as well as a state- 
ment that the member small employer continues to 
meet the legal requirements of membership in an 
alliance, which verifies the eligibility of enrollees 
and a listing of all potentially eligible employees. 

Statutory Authority G.S. 143-626. 

.0406 EMPLOYER QUALIFICATION AND 
EMPLOYEE ENROLLMENT PERIOD 

(a) An alliance may rely upon the application for 
enrollment to determine qualification of the small 



employer and enrollees. The alliance shall make 
these determinations within 10 working days of 
receipt of the complete a pplication. 

(b) Upon determining that a small employer is 
not qualified, the alliance will notify in writing the 
small employer of the reason for disqualification 
and provide an explanation of the appeal process. 
The notice shall contain a refund of the small 
employer's initial payment. 

(c) Upon determining that a requested enrollee 
(employee or dependent) of a qualified small 
employer is not eligible, the alliance shall notify 
the small employer and the small employer shall 
notify the employee. Both notices shall state the 
reason for the determination of ineligibility and 
explain the appeal process. The alliance's notice 
shall include a refund of that portion of the small 
employer's initial payment for coverage of any 
enrollee found to be ineligible. 

Statutory Authority G.S. 143-626; 143-628. 



.0407 WATTING PERIOD 

An eligible employee who 



declines coverage 



through an alliance or any dependents for whom 
an eligible employee declines coverage shall be 
eligible to enroll at the alliance's next open enroll- 
ment period. 

Statutory Authority G.S. 143-626. 

.0408 OPEN ENROLLMENT PERIOD 

(a) An alliance shall provide for an annual open 
enrollment period of at least 30 consecutive days. 
Such enrollment periods shall occur within 90 days 
prior to the anniversary date of the member small 
employer's qualified health care plan. During this 
period, the following may occur: 

(1) enrollees may be transferred from one 
qualified health care plan to another 
may occur; 

(2) eligible employees may choose to enroll 
themselves and their dependents in the 
alliance; and 

(3) enrolled employees may choose to 
enroll their dependents. 

(b) Late enrollees may enroll during this period 
pursuant to conditions established in G.S. 58-50- 
130. 

(c) Upon determining that any enrollee request- 
ing to be enrolled during an open enrollment 
period of a qualified small employer is ineligible 
for coverage, an alliance shall notify the member 
small employer and the member small employer 
shall notify the employee. Both notices shall state 



1036 



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October 3, 1994 



PROPOSED RULES 



the reason for the determination of ineligibility and 
explain the a ppeal process. The alliance's notice 
shall include a refund of that portion of the small 
employer's initial payment for coverage of 
enrollees found to be ineligible. 

(d) For eligible enrollees transferring to a new 
qualified health care plan during an open 
enrollment period, the member small employer 
shall provide the following: 
(1) name; 
address; 



£2) 

£3} 
£41 
£5} 
£6} 



social security number; 

current qualified health care plan; 

new qualified health care plan; 

name and social security number, if 

available, for enrolled dependents over 

one year of age; 

(7) a copy of the Federal W-4 forms or 
employer payroll records for affected 
employees; and 

(8) any other information a pproved by the 
Board pursuant to the member services 
authorized under Rule .0206 of this 
Chapter. 

(e) For employees enrolling during the open 
enrollment and who were not eligible employees 
when the small employee filed an initial 
application and are enrolling during the open 
enrollment period, the member small employer 
shall provide the information required by Rule 
. 0403031 of this Section and a copy of the Federal 
W-4 forms or employer payment records for those 
employees. 

Statutory Authority G.S. 143-628; 143-629. 

.0409 ENROLLMENT ADDITIONS 

OUTSIDE OPEN ENROLLMENT 

(a) For each eligible employee whom the mem- 
ber small employer seeks to enroll outside the 
open enrollment period, an alliance shall specify 
the manner in which a shall employer shall provide 
the alliance with the information required by Rule 
.0403 (b) of this Section and a copy of the Federal 
W-4 forms or employer payment records for those 
employees. 

(b) For each dependent whom the member small 
employer seeks to enroll outside the open enroll- 
ment period, an alliance shall specify the manner 
in which a small employer shall provide the 
information required by Rule .0403(c)(2) of this 
Section, in a form consistent with the member 
service plan approved by the Board pursuant to 
Rule .0206 of this Chapter. 

(c) If the employee requesting coverage previ- 



ously declined or dropped coverage for the depen- 
dent because the dependent had coverage under 
another employer's group plan, the member small 
employer shall specifically provide written proof 
of the dependent's previous coverage and the date 
of termination of the previous coverage. 

(d) A member small employer shall also specifi- 
cally provide notice of the birth or adoption of a 
child, or the addition of a stepchild, spouse or 
foster child, within 30 calendar days after the 
event to continue coverage of the newborn, adopt- 
ed child, stepchild, spouse, or foster child as a 
dependent 

£e) If a court has ordered an enrolled eligible 
employee to enroll the dependent(s) in his or her 
health benefit plan, a member small employer shall 
specifically provide a copy of such court order. 

(f) Upon determining that any additional re- 
quested enrollee is not eligible, the alliance shall 
notify the small employer and the small employer 
shall notify the employee. The notice shall include 
the reason for the determination of ineligibility and 
an explanation of the a ppeal process. The 
alliance's notice shall include a refund of that 
portion of the small employer's monthly payment 
covering amounts owed for coverage to persons 
found to be ineligible. 

(g) Late enrollees may not app ly pursuant to this 
Rule. 

(h) An alliance shall notify each member small 
employer and the participating AHCs of the 
effective dates of coverage, which in the case of an 
employer first a pplying to participate jn the 
alliance shall be as of the first day of the month. 
or in the fifteenth day of the month whichever 
occurs first after the alliance accepts the 
employer's a pplication, and shall be as of the first 
day of the month in all cases with the exception of 
newborn children born after alliance coverage has 
taken effect. 

(i) Outside of an open enrollment period, an 
alliance may approve the transfer of an enrollee 
from one qualified health care plan to another 
under the following conditions: 

(1) the member small employer so requests 
in writing because the eligible employee 
no longer resides in an area served by. 
the accountable health carrier in which 
the employee is enrolled, or 

(2) the member small employer or the 
accountable health carrier requests in 
writing for transfer of an enrollee and 
establishes sufficient cause for the 
transfer. 

A transfer of enrollment shall take effect within 30 



9:13 



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October 3, 1994 



1037 



PROPOSED RULES 



calendar days of approval. Within 10 days of 
a pproving a transfer of enrollment, the alliance 
shall notify in writing the affected member small 
employer and accountable health carrier of any 
transfer of enrollment and its effective date. 



employer disenrolled pursuant to Subparagraph 
(a)(2) of this Rule who does not gain reinstatement 
pursuant to Rule .0418 of this Section, cannot 
participate in the alliance for two years after the 
date of disenrollment. 



Statutory Authority G.S. 143-628; 143-629. 

.0410 DISENROLLMENT OF MEMBER 
SMALL EMPLOYER 

(a) An alliance shall disenroll a member small 
employer in the alliance if any of the following 
occur: 

(1) It is no longer a qualified small employ- 
er, except in the case when a member 
small employer adds employees and 
exceeds the maximum of 49 employees 
during the course of coverage through 
an alliance. An alliance shall allow 
such an employer to cover all additional 
employees during the term of that 
coverage pursuant to G.S. 58-50- 
110(22). 

(2) It fails to pay the employer monthly 
payment for the enrollees as set forth in 
Rules .0416 and .0417 of this Section. 

(3) It requests termination in writing at 
least 30 calendar days prior to the 
effective date of the requested termina- 
tion. 

(4) It has committed a material violation of 
the statutes or regulations relating to the 
alliance. 

(b) Upon disenrolling a s mall employer pursuant 
to Subparagraph (a)(1). (2). or £4} of this Rule, an 
alliance shall notify the employer and each en- 
rolled employee of the termination. The alliance 
shall send notices to enrolled employees at their 
addresses of record. Such notice shall state the 
reason for termination, the effective date of termi- 
nation, and the final day of coverage provided 
through the alliance. 

(c) Upon disenrolling a small employer pursuant 
to Subparagraph (a)(2) of this Rule, an alliance 
shall send a notice to the employer and to enrolled 
employees no later than 30 calendar days following 
the employer monthly payment due date. The 
notices shall state the requirements necessary for 
reinstatement under Rule .0418 of this Section. 

(d) An employer who is disenrolled pursuant to 
Subparagraph (a)(1) of this Rule may reapply to 
the alliance whenever it again meets the require- 
ments to be a qualified small employer. 

(e) An employer who is disenrolled pursuant to 
Subparagraph (a)(3) or £4} of this Rule, or an 



Statutory Authority G.S. 143-628; 143-629. 

.0411 DISENROLLMENT OF ENROLLEES 

(a) An alliance shall disenroll any enrollee when 
any of the following occurs: 

(1) an alliance terminates an enrol lee's 
employer from the alliance. 

(2) the enrollee has committed an act of 
fraud or misrepresentation to circum- 
vent the statutes or regulations relating 
to the alliance or the rules of the ac- 
countable health carrier covering the 
enrollee. 

(3) the employee ceases to be an eligible 
employee of the member small employ- 
er. However, the former employee and 
qualified dependents may continue in 
the alliance pursuant to the continuation 
of benefits provisions under Rule .0412 
of this Section. Continuation of Bene- 
fits. 

(4) a dependent ceases to be a dependent. 

(b) An alliance shall disenroll an enrollee pursu- 
ant to Subparagraph (a)(1) or £2} of this Rule 
within 45 calendar days of the alliance's determi- 
nation to disenroll. 

(c) To disenroll enrollees pursuant to Subpara- 
graph (a)(3) or £4) of this Rule, a member small 
employer shall provide the alliance at least 10 
working days prior to the due date of the employer 
monthly payment with the full names, addresses, 
dates of birth, gender, and social security numbers 
of the enrollees and the requested date of dis- 
enrollment. The member small employer shall p ay 
the alliance for coverage until the date of dis- 
enrollment. 

(d) The alliance shall notify a member small 
employer and the affected accountable health 
carrier in writing of the disenrollment and its 
effective date within 10 days of the alliance's 
determination. 

(e) Upon disenrollment pursuant to Subpara- 
graph (a)(2) of this Rule, an enrollee shall not be 
eligible for re-enrollment in the alliance through 
the same member small employer for one year 
from the date of disenrollment. 

Statutory Authority G.S. 143-628; 143-629. 



1038 



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NORTH CAROLINA REGISTER 



October 3, 1994 



PROPOSED RULES 



.0412 CONTINUATION OF BENEFITS 

An alliance shall permit a member small employ- 
er with any former enrolled employee who quali- 
fies for continuation of coverage under the federal 
Consolidated Omnibus Budget Reconciliation Act 
(COBRA) of 1985 as amended, or under G.S. 143- 
626, to obtain such coverage through the member 
small employer's notification in writing of the 
enrollees' intent to obtain such continuation cover- 
ape and the information required in Rule .041 1 of 
this Section and to maintain such coverage in a 
manner consistent with federal COBRA and/or 
G.S. 143-626. 

Statutory Authority G.S. 143-636. 

.0413 PAYMENT TO INSURANCE 
AGENTS AND BROKERS 

(a) The Board shall encourage the use of IN 
censed agents and brokers to assist employers in 
obtaining coverage through an alliance and to 
assist alliances in marketing and publicizing the 
availability to small employers of coverage through 
an alliance. 

(b) Any licensed agent or broker may market 



and sell any qualified health care plan of any 
accountable health carrier, including any health 
maintenance organization (HMO) plan, offered 
through an alliance unless otherwise limited by 
contract with a certain carrier or carriers. 

(c) A licensed agent or broker who requests a 
service fee on a small employer's application or 
renewal shall receive it upon the employer's 
enrollment unless the small employer truly certifies 
on the application that an agent or broker did not 
perform the following: 

(1) assist the small employer in completing 
the application, 

(2) calculate or determine the cost of the 
AHC premium rate, the alliance's 
program participation fee, and the agent 
or broker's service fee or any other 
a pplicable fee for the small em ployer, 
and 

(3) assist the small employer in enrolling 
the eligible employees of the small 
employer. 

(d) The Board shall annually set the amount of 
the service fee. 

(e) An agent or broker shall not be eligible to 
receive a service fee after the Department of 
Insurance notifies an alliance that the agent or 
broker is no longer a licensed agent or broker. 

Statutory Authority G.S. 143-626; 143-628; 143- 



632. 

.0414 ALLIANCE PARTICIPATION FEE 

An alliance shall establish a standard program 
participation fee for all member small employers. 
The revenue from these program participation fees 
shall pay for the administrative costs of an alli- 
ance. Subject to Board approval , an alliance may 
enter into an agreement allowing a community 
sponsor or community partner to be responsible 
for covering a certain portion of the fee for a 
member small employer which is affiliated with 
that community sponsor or community partner. 

Statutory Authority G.S. 143-628. 

.0415 NOTD7ICATION OF RATE CHANGES 

An alliance shall notify each member small 
employer of changes in plan rates no later than 30 
calendar days prior to the start of the rating peri- 
pd. 

Statutory Authority G.S. 143-629. 

.0416 EMPLOYER MONTHLY PAYMENT 

PROCEDURES AND REQITREMENTS 

(a) An alliance shall receive a monthly payment 
no later than the first of the month preceding the 
month of coverage. 

(b) An alliance will notify a member small 
employer of the monthly payment due to the 
alliance, the due date of the employer monthly 
payment, and the enrollees included in the employ- 
er monthly payment at least 15 calendar days in 
advance of the employer monthly payment due 
date. 

(c) A member small employer's obligation to 
submit the employer monthly payment required by 
Paragraph (a) of this Rule is not contingent upon 
receipt of notice specified in Paragraph (b) of this 
Rule. If a member small employer does not 
receive the notice from an alliance described in 
Paragraph (b) of this Rule, the member small 
employer shall make a good faith effort to deter- 
mine the amount of the employer monthly payment 
and shall submit a payment of that amount to the 
alliance on or before the due date specified in 
Paragraph (a) of this Rule. 

Statutory Authority G.S. 143-630. 

.0417 OVERDUE PAYMENTS; LATE FEES; 
TERMINATION 

(a) An alliance shall consider a member small 
employer who fails to make full monthly payment 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1039 



PROPOSED RULES 



by the 15th of the month preceding the month of 
coverage overdue on the monthly payment. 

(b) Overdue employer monthly payments shall 
be subject to a late fee equal to five percent of the 
employer's monthly payment. 

(c) On or before the 20th of the month preced- 
ing the month of coverage, the alliance shall notify 
member small employers that payment is overdue, 
and that, unless the employer remits the overdue 
payment and the late fee within five days, cover- 
age will terminate as of the end of the month. 
Such notice shall include a statement that if cover- 
age so terminates, the employer may gain rein- 
statement if the employer meets the requirements 
of Rule .0418 of this Section. 

Statutory Authority G.S. 143-630. 

.0418 REINSTATEMENT FOLLOWEVG 

TERMINATION FOR NON-PAYMENT 

(a) An alliance may reinstate a small employer 
terminated pursuant to Rule .0417(c) of this 
Section without any lapse in coverage upon the 
small employer's remittance to the alliance no later 
than 15 calendar days following the issuance of the 
notice described in Rule .0417(c) of this Section of 
the following: the employer's monthly payment 
(including the late fee and a program reinstatement 
fee equal to 10% of the employer monthly pay- 
ment) and the subsequent month's employer 
monthly payment. 

(b) If an alliance receives payment from a 
terminated small employer later than 15 calendar 
days following the issuance of the notice described 
in Rule .0417(c) of this Section, the alliance shall 
return the amount within 20 calendar days of 
receiving it 

(c) An alliance shall not be reinstate a small 
employer more than twice in a \2 month period of 
time. 

Statutory Authority G.S. 143-630. 

.0419 MONTHLY PAYMENTS TO AHCS 

An alliance shall forward payments to the AHC 
by electronic funds transfer, on or before the first 
of each month. 

Statutory Authority: G.S. 143-631. 



1040 9:13 NORTH CAROLINA REGISTER October 3, 1994 



LIST OF RULES CODIFIED 



1 he List of Rules Codified 


is a listing of rules that were filed with OAH in the month indicated. 


MVey: 






Citation 


= 


Title, Chapter, Subchapter and Rule(s) 


AD 


= 


Adopt 


AM 


= 


Amend 


RP 


= 


Repeal 


With Chgs 


= 


Final text differs from proposed text 


Corr 


= 


Typographical errors or changes that requires no rulemaking 


Eff. Date 


= 


Date rule becomes effective 


Temp. Expires 




Rule was filed as a temporary rule and expires on this date or 180 days 



NORTH CAROLINA ADMINISTRATIVE CODE 
SEPTEMBER 94 



[TLE 


DEPARTMENT 




TITLE 


DEPARTMENT 


10 


Human Resources 




19A 


Transportation 


11 


Insurance 




21 


Occupational Licensing Boards 


12 


Justice 






32 - Medical Examiners 


13 


Labor 






48 - Physical Therapy 


15A 


Environment, Health, 
Natural Resources 


and 




65 - Therapeutic Recreation Certification 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


10 NCAC 3R .3020 




/ 








10/01/94 




.3030 




/ 








10/01/94 




20A .0102 




/ 




/ 




10/01/94 




20B .0203 




/ 




/ 




10/01/94 




.0206 




/ 




/ 




10/01/94 




.0224 




/ 




/ 




10/01/94 




20C .0203 




/ 




/ 




10/01/94 




.0205 




/ 




/ 




10/01/94 




.0316 




/ 




/ 




10/01/94 




.0501 


/ 






/ 




10/01/94 




.0502 


/ 










10/01/94 




.0601 - .0603 


/ 






/ 




10/01/94 







9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1041 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0604 - .0607 


/ 










10/01/94 




10 NCAC 261 .0401 - .0403 


/ 










10/01/94 




.0404 


/ 






/ 




10/01/94 




.0405 


/ 










10/01/94 




26K .0006 




/ 




/ 




10/01/94 




50B .0102 




/ 








09/12/94 


180 DAYS 


.0102 




/ 








10/01/94 


180 DAYS 


.0408 




/ 








09/12/94 


180 DAYS 


.0408 




/ 








10/01/94 


180 DAYS 


11 NCAC 12 .0324 




/ 




/ 




10/01/94 




.0325 




/ 








10/01/94 




.1304 




/ 




/ 




10/01/94 




.1501 - .1509 


/ 






/ 




10/01/94 




12 NCAC 4E .0104 




/ 




/ 




10/01/94 




.0201 - .0202 




/ 








10/01/94 




.0303 




/ 








10/01/94 




.0402 




/ 




/ 




10/01/94 




4F .0201 




/ 








10/01/94 




.0401 




/ 




/ 




10/01/94 




4G .0102 




/ 




/ 




10/01/94 




9A .0103 




/ 








10/01/94 


180 DAYS 


10B .0103 




/ 








10/01/94 


180 DAYS 


13 NCAC 7F .0101 




/ 








11/01/94 




.0201 




/ 








11/01/94 




.0301 




/ 








11/01/94 




.0501 - .0502 




/ 








11/01/94 




15A NCAC U .1301 -.1303 


/ 










09/08/94 


180 DAYS 


2B .0311 










/ 






31 .0017 


/ 










09/26/94 


180 DAYS 


IOC .0302 




/ 








10/01/94 




101 .0001 




/ 




/ 




10/01/94 




10J .0003 




/ 




/ 




10/01/94 




.0004 




/ 








10/01/94 







1042 



9:13 



NORTH CAROUNA REGISTER 



October 3, 1994 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


13B .1628 




/ 




/ 




10/01/94 




15A NCAC 18A .2508 




/ 








10/01/94 




.2539 


/ 










10/01/94 




19A .0101 - .0102 




/ 




/ 




10/01/94 




.0202 




/ 




/ 




10/01/94 




.0203 




/ 








10/01/94 




.0205 




/ 




/ 




10/01/94 




.0209 


/ 






/ 




10/01/94 




.0401 




/ 








10/01/94 




19C .0601 - .0607 




/ 




/ 




10/01/94 




.0608 


/ 






/ 




10/01/94 




20D .0234 




/ 




/ 




10/01/94 




.0243 




/ 








10/01/94 




.0250 




/ 








10/01/94 




24A .0201 




/ 




/ 




10/01/94 




.0202 




/ 








10/01/94 




.0203 




/ 




/ 




10/01/94 




.0301 




/ 




/ 




10/01/94 




.0502 - .0503 




/ 




/ 




10/01/94 




19A NCAC 2D .0607 










/ 






3D .0516 














EXPIRED 


.0517- .0550 


/ 






/ 




10/01/94 




21 NCAC 32F .0003 




/ 








10/01/94 




48F .0002 




/ 




/ 




10/01/94 




65 .0004 




/ 








10/01/94 





9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1043 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



COMMERCE 

Alcoholic Beverage Control Commission 

4 NCAC 2T .0103 - Beer Franchise Law; "Brand" Defined 

Energy 

4 NCAC 12C .0007- Institutional Conservation Program 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Mining: Mineral Resources 

15 A NCAC 5B .0013 - Response Deadline to Department's Request(s) 

Wildlife Resources and Water Safety 

15A NCAC 101 .0001 - Definitions and Procedures 

JUSTICE 

Criminal Justice Education and Training Standards 

12 NCAC 9B .0208 - Basic Training - Probation/Parole Officers 

LICENSEVG BOARDS AND COMMISSIONS 

Therapeutic Recreation Certification 

21 NCAC 65 .0004 - Academic - TRS Examination 



RRC Objection 09/15/94 



RRC Objection 06/16/94 

07/14/94 

Eff. 08/16/94 



RRC Objection 09/15/94 



RRC Objection 08/18/94 



RRC Objection 07/14/94 



RRC Objection 08/18/94 



1044 



9:13 



NORTH CAROLINA REGISTER 



October 3, 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

North Carolina Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Jerry Lee McGowan v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Rayvon Stewart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Branch land. Inc. 

Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 

Russell Bernard Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm. 

Alcoholic Beverage Control Comm. v. Branch land. Inc. 

Edward Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm. 

Robert Kovalaske, Nick Pikoulas, Joseph Marshburn, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George Williams v. Alcoholic Beverage Control Comm. 
Lynn Ann Garfagna v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Raleigh Limits, Inc. 
Alcoholic Beverage Control Comm. v. COLAP Enterprises, Inc. 
Alcoholic Beverage Control Comm. v. Mitch's Tavern, Inc. 
Alcoholic Beverage Control Comm. v. Ms. Lucy Jarrell Powell 
Alcoholic Beverage Control Comm. v. Daphne Ann Harrell 
Mr. & Mrs. Josh Bullock Jr. v. Alcoholic Beverage Control Comm. 
Jerome Crawford v. Alcoholic Beverage Control Commission 
Lawrence Mungrn v. Alcoholic Beverage Control Commission 
Willie Poole Jr. v. Alcoholic Beverage Control Commission 
Alonza Mitchell v. Alcoholic Beverage Control Commission 
Roy Dale Cagle v. Alcoholic Beverage Control Commission 

COMMERCE 



94 DOA 0242 



West 



04/13/94 



93 ABC 0363 


Morrison 


08/23/94 




93 ABC 0719 


Gray 


03/02/94 




93 ABC 0793 


Nesnow 


04/11/94 




93 ABC 0892 


Morgan 


06/03/94 




93 ABC 0906 


Mann 


03/18/94 




93 ABC 0937 


Morrison 


03/07/94 




93 ABC 0993 


Morgan 


06/03/94 




93 ABC 1024 


West 


03/03/94 




93 ABC 1029 


Gray 


03/04/94 




93 ABC 1057 


Bee ton 


04/21/94 




93 ABC 1481 


Gray 


07/19/94 




93 ABC 1485 


Mann 


03/11/94 




94 ABC 0060 


Nesnow 


06/07/94 




94 ABC 0064 


Gray 


07/26/94 




94 ABC 0070 


Morgan 


06/06/94 




94 ABC 0115 


Nesnow 


07/18/94 




94 ABC 0124 


Morgan 


06/06/94 




94 ABC 0125 


Morgan 


06/06/94 




94 ABC 0149 


Chess 


08/08/94 




94 ABC 0232 


Chess 


09/02/94 




94 ABC 0257 


Morrison 


07/28/94 


9:11 NCR 870 


94 ABC 0260 


West 


07/13/94 





Savings Institutions Division 

James E. Byers, et al v. Savings Institutions 

CORRECTION 



93 COM 1622 Chess 03/01/94 



Division of Prisons 

Gene Strader v. Department of Correction 

CRIME CONTROL AND PUBLIC SAFETY 



94 DOC 0252 



Morrison 03/21/94 



Joseph Guernsey &. Parents, Robert Guernsey & Dolores Guernsey 
v. Pitt County Hospital Eastern Radiologists 

Crime Victims Compensation Commission 

Mae H. McMillan v. Crime Victims Compensation Commission 
James Hugh Baynes v. Crime Victims Compensation Commission 
Ross T. Bond v. Victims Compensation Commission 
James A. Canady v. Crime Victims Compensation Commission 
Virginia Roof v. Department of Crime Control & Public Safety 
Karen C. Tilghman v. Crime Victims Compensation Commission 



94CPS0413 Gray 07/11/94 



92 CPS 1328 

93 CPS 0801 
93 CPS 1104 
93 CPS 1108 
93 CPS 1347 
93 CPS 1608 



Morgan 08/11/94 

West 03/28/94 

West 04/21/94 

Gray 03/28/94 

Nesnow 03/24/94 

Reilly 05/17/94 



9:2 NCR 114 



9:6 NCR 407 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1045 



CONTESTED CASE DECISIONS 



AGENCY 



Rosemary Taylor v. Crime Victims Compensation Commission 
Violet E. Kline v. Crime Victims Compensation Commission 
James Benton v. Crime Victims Compensation Commission 
Percy Clark v. Crime Victims Compensation Commission 
J. Richard Spencer v. Crime Victims Compensation Commission 
Albert H. Walker v. Crime Victims Compensation Commission 
Barbara Henderson v. Crime Victims Compensation Commission 
Shirley Handsome v. Crime Victims Compensation Commission 
Georgeann Young v. Crime Victims Compensation Commission 
Lawrence L. Tyson v. Crime Victims Compensation Commission 
Ada Battle v. Crime Victims Compensation Commission 
Lyman L. Chapman v. Crime Victims Compensation Commission 
Douglas and Virginia Wilson v. Crime Victims Compensation Comm. 
Michelle L. Wilcox v. Crime Victims Compensation Commission 
Charlie E. McDonald v. Crime Victims Compensation Commission 
Michael G. Low v. Crime Victims Compensation Commission 
James R. Gray v. Crime Victims Compensation Commission 
Hazel Jarvis v. Victims Compensation Commission 
Pattie Hale v. Victims Compensation Fund 
Mary E. Haskins v. Crime Victims Compensation Commission 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALj 


DECISION REGISTER CITATION 


93 CPS 1626 


Nesnow 


05/25/94 


93 CPS 1670 


Morgan 


06/13/94 


94 CPS 0034 


Chess 


06/14/94 


94 CPS 0127 


Reilly 


04/19/94 


94 CPS 0157 


Chess 


06/14/94 


94 CPS 0229 


Reilly 


08/11/94 


94 CPS 0259 


Morrison 


04/07/94 


94 CPS 0286 


Gray 


04/28/94 


94 CPS 0292 


Reilly 


04/18/94 


94 CPS 0368 


Gray 


04/26/94 


94 CPS 0414 


Reilly 


08/23/94 


94 CPS 0415 


Chess 


06/02/94 


94 CPS 0417 


Reilly 


06/07/94 


94 CPS 0467 


Reilly 


06/07/94 


94 CPS 0468 


Gray 


09/02/94 9:13 NCR 1056 


94 CPS 0524 


Morrison 


06/13/94 


94 CPS 0603 


Reilly 


08/19/94 


94 CPS 0664 


Chess 


07/29/94 


94 CPS 0734 


West 


09/06/94 


94 CPS 1406 


Gray 


03/17/94 



RMPIX)YMENT SECURITY COMMISSION 



David Lee Bush v. Employment Security Commission 
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



91 ESC 0395 



Reilly 



08/18/94 



Bobby Stallings v. Environment, Health, and Natural Resources 
William P. Shaver, R. McKinnon Morrison HI, fill Ray, Dr. Wesley 

C Ray, Douglas W. Furr, Catherine H. Furr & Caldwell Creek Farm, Inc. 

v. EHNR-State of North Carolina 
Ron D. Graham, Suzanne C. Graham v. Robert Cobb, MeckJenbuig Cty 
Camel D. Pearson Jr. v. Craven Co. Division of Health & DEHNR 
Patricia D. Solomon v. Macon County Health Department 
Elbert L. Winslow v. EHNR/Guilford Cty Health Dept. & Guilfoid Cty 

Planning & Zoning Board 
Kathryn A. Whitley v. Macon County Health Department 
Brook Hollow Estates v. Environment, Health, & Natural Resources 
Oceanfront Court, David C. Gagnon v. Environment, Health, & Nat. Res. 
Sam's Club #8219 v. Mecklenbuig County Health Department 
Eugene Crawford & Nancy P. Crawford v. Macon County Health Dept. 
Tri-Circuits, Inc. v. Environment, Health, & Natural Resources 
Irene, Will, Eric Litaker v. Montgomery County Health Department 



90 EHR 0612 


Morgan 


08/11/94 


93 EHR 0452 


Morgan 


08/11/94 


93 EHR 1017 


Bee ton 


05/31/94 


93 EHR 1759 


Mann 


09/06/94 


93 EHR 1777 


West 


05/23/94 


94 EHR 0086 


Chess 


07/13/94 


94 EHR 0088 


West 


07/13/94 


94 EHR 0093 


West 


06/03/94 


94 EHR 0210 


Chess 


06/21/94 


94 EHR 0329 


Nesnow 


06/15/94 


94 EHR 0500 


Gray 


06/10/94 


94 EHR 0601 


Morrison 


06/30/94 


94 EHR 0776 


Gray 


09/06/94 



9:7 NCR 496 



Coastal Management 



Roger Fuller v. EHNR, Div. of Coastal Mgmt & Environmental Mgmt 
Roger Fuller v. EHNR, Div. of Coastal Mgmt & Environmental Mgmt 
John R. Hooper v. EHNR, Div./Coastal Mgmt & Bird's Nest Partnership 
Gary E. Montalbine v. Division of Coastal Management 
Paley-Midgett Partnership v. Coastal Resources Commission 



89 EHR 1378-* 


Gray 


04/07/94 


90 EHR 0017* 


Gray 


04/07/94 


90 EHR 0455 


Morgan 


08/11/94 


93 EHR 1792 


Nesnow 


03/21/94 


94 EHR 0315 


Gray 


06/01/94 



Environmental Health 



Jane C. O'Malley, Melvin L. Cartwright v. EHNR & District Hlth Dept 

Pasquotank-Perquimans-Camden-Chowan 
Henry Lee Bulluck v. Nash County Health Department &. EHNR 
Environment, Health, & Natural Res. v. Clark HarriB & Jessie Lee Harris 
Richard F. Ebersold v. Jackson County Health Department & EHNR 
Sidney S. Tate Jr. v. Dept. of Environment, Health, & Natural Resources 
George A Waugh, Shirley A. Waugh v. Carteret Cty Health & Env. Hlth 
Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res. 
H.A. Lentz v. Department of Environment, Health, &. Natural Resources 
Floyd Benn Williams v. Dept. of Environment, Health, & Nat. Res. 



91 EHR 0838 


Bee ton 


04/06/94 


93 EHR 0348 


Morgan 


07/22/94 


93 EHR 0924 


Bee ton 


03/03/94 


93 EHR 1391 


Chess 


06/24/94 


94 EHR 0005 


Reilly 


05/24/94 


94 EHR 0128 


Chess 


07/13/94 


94 EHR 0200 


Nesnow 


04/27/94 


94 EHR 0235 


Nesnow 


07/19/94 


94 EHR 0333 


Reilly 


05/18/94 



• Consolidated Cases. 



1046 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Environmental Management 

David Springer v. Dept. of Environment, Health, &. Natural Resources 
Petroleum Installation Equipment Co., Inc. v. Env. , Health & Nat. Res. 
Jack Griffin v. Dept. of Environment, Health, and Natural Resources 
John G. Owens & J.B.S. Mechanical Svcs, Inc. v. EHNR, Env. Mgmt. 



92 EHR 1797 


Morgan 


05/19/94 


93 EHR 0531 


Chess 


03/21/94 


93 EHR 1030 


Bee ton 


03/21/94 


94 EHR 0024 


Mann 


09/07/94 



Land Resources 



Wallace B. Clayton, Dr. Marshall Redding v. Div. of Land Resources 
Town of Kernersville (LQS 93-053) v. Environment, Health, & Nat. Res. 
Royce Perry, Paul Perry v. Dept. of Environment, Health, & Natural Res. 



93 EHR 1407 


Morgan 


08/09/94 




93 EHR 1781 


Chess 


06/29/94 


9:8 NCR 581 


94 EHR 0525 


Gray 


07/01/94 





Marine Fisheries 



Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 

Larry J. Batson v. Division of Marine Fisheries 

David W. Oglesby v. Division of Marine Fisheries 

David E. Oglesby v. Division of Marine Fisheries 

James Goodman v. EHNR, Division of Marine Fisheries 

Billy Ervin Burton v. Division of Marine Fisheries 

Solid Waste Management 

Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 
Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early, 
Herbert Jenkins, Jr., Lindwood Earl Tripp, Willie Warren Tripp, Mary 
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 
Division, and East Carolina Environmental, Inc., Addington Environmental 
Inc., et al. 
Bobby Benton v. EHNR & Division of Solid Waste 



93 EHR 0394 


Gray 


04/11/94 






93 EHR 0857 


Morgan 


07/22/94 






93 EHR 0930*' 


West 


07/25/94 


9:10 NCR 


758 


93 EHR 093 \* 


West 


07/25/94 


9:10 NCR 


758 


94 EHR 0035 


Nesnow 


07/18/94 


9:9 NCR 


660 


94 EHR 0504 


Nesnow 


09/01/94 







93 EHR 0951 
93 EHR 1045 



94 EHR 0442 



Gray 
Morrison 



Gray 



03/28/94 
04/06/94 



08/22/94 



9:3 NCR 214 



HUMAN RESOURCES 



Jerome Triplin v. Department of Human Resources 

Helen J. Walls, Walls Young World v. Department of Human Resources 

Brenda C. Robinson v. Department of Human Resources 

Betty Rhodes v. Department of Human Resources 

Distribution Child Support 

Mona L. Stanback v. DHR, Div/Social Svcs, Child Support Enf. Section 
Jachell D. Parker v. Department of Human Resources 
Earleen G. Tinsley v. Department of Human Resources 



93 DHR 0108 


Reilly 


08/19/94 


93 DHR 0965 


Morgan 


08/11/94 


94 DHR 0365 


West 


06/01/94 


94 DHR 0501 


Morrison 


06/02/94 



93 DCS 0969 


Morgan 


08/02/94 


93 DCS 0371 


Morgan 


07/14/94 


94 DCS 0651 


Nesnow 


09/15/94 



Division of Child Development 

Judith Fridley v. Div. of Child Develop ment/Ab use/Neglect Unit 

DHR, Division of Child Development v. Joyce Gale 

Laurcen Holt, ID#26-0-00037 v. DHR, Div. of Child Development 

Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Scott's Loving Day Care & Nursery, Mre. Willie L. Scott v. DHR 

Belinda K. Mitchell v. Human Resources, Div. of Child Development 

Living Word Day Care, Jonathan Lankford v. Dept. of Human Resources 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1549 


Bee ton 


07/13/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0106 


Nesnow 


06/29/94 


94 DHR 0119 


Reilly 


06/30/94 


94 DHR 0168 


Nesnow 


03/23/94 



Facility Services 

Laura Harvey Williams v. DHR, Division of Facility Services 

Presbyterian-Orthopaedic Hospital v. Department of Human Resources 

Judy Hoben Wallace v. Department of Human Resources 

Lowell Stafford v. Department of Human Resources 

Mr. & Mrs. AJvin Wilson v. DHR, Division of Facility Services 



93 DHR 0391 


Morgan 


08/11/94 


93 DHR 0805 


Reilly 


03/11/94 


93 DHR 0935 


Gray 


05/23/94 


93 DHR 1381 


Gray 


04/15/94 


94 DHR 0559 


Chess 


08/25/94 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1047 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Certificate of Need Section 

Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. 

Department of Human Resources, and Wilmington Perfusion 

Corp. and Howard F. Marks, Jr., M.D. 
Cape Fear Memorial Hospital v. Department of Human Resources 
The Carrolton of Fayetteville, Inc. v. Department of Human Resources 

and 
Highland House of Fayetteville, Inc. & Richard R. Allen Sr. v. DHR 
The Carrolton of Fayetteville, Inc. v. Department of Human Resources 

and 
Highland House of Fayetteville, Inc. & Richard R. Allen Sr. v. DHR 

Division of Medical Assistance 

J.R., by and through her agent & Personal Rep., Hank Neal v. DHR 
N.R. by & through her agt & personal rep E.C.J, v. DHR, Medical Assis. 
David Yott v. Department of Human Resources 

Sampson County Memorial Hospital v. DHR, Div of Medical Assistance 
Division of Medical Assistance v. Catawba Cty Dept. of Social Services 
Lu Ann Leidy, MD/Dorothea Dix Hosp. Child & Youth v. Medical Assis. 

Division of Social Services 

Evelyn Moore v. Department of Human Resources 

Nathaniel Harrell, Annie Harrell v. Department of Social Services 

Child Support Enforcement Section 

Alfred Bennett v. Department of Human Resources 

Shelton Staples v. Department of Human Resources 

Helen Lee Harvell Jones v. Department of Human Resources 

Dalton Felton Sr. v. Department of Human Resources 

Colby S. Hughes v. Department of Human Resources 

Gary Eugene Honeycutt v. Department of Human Resources 

Vicki C. Conn v. Department of Human Resources 

Melvin L. Miller Sr. v. Department of Human Resources 

Robert L. Hicks v. Department of Human Resources 

Darryl D. Leedy v. Department of Human Resources 

William Heckstall v. Department of Human Resources 

Luther Hatcher v. Department of Human Resources 

Bryan Jeffrey Cole v. Department of Human Resources 

Anthony E. Bullaid v. Department of Human Resources 

Donald E. Height v. Department of Human Resources 

Dexter L. Chambers v. Department of Human Resources 

Ronald E. Johnson v. Department of Human Resources 

Roger Moore v. Department of Human Resources 

Alvin Lee Martin v. Department of Human Resources 

Robert Young v. Department of Human Resources 

Henry M. Dillard v. Department of Human Resources 

Vernon Byrd v. Department of Human Resources 

Antonio Townsend v. Department of Human Resources 

Keith M. Gray v. Department of Human Resources 

Troy E. Pinkney v. Department of Human Resources 

Anthony A. Macon v. Department of Human Resources 

Walter Lee Corbett v. Department of Human Resources 

Joseph E. Kemstine v. Department of Human Resources 

Alvin M. Davis v. Department of Human Resources 

Thomas M. Bird well III v. Department of Human Resources 

Joe Louis Mayo v. Department of Human Resources 

Bobby Lewis Smith v. Department of Human Resources 

Louis C. Cade v. Department of Human Resources 

Richard J. Swarm v. Department of Human Resources 

Nash Andrew Newsome v. Department of Human Resources 

James E. Wateon v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Betty A. Williams, Fred E. Jones v. Department of Human Resources 

Jeff A. Taylor v. Department of Human Resources 



93 DHR 0746 Morgan 04/11/94 



93 DHR 1552 Reilly 08/15/94 

94 DHR 0197* 5 Morgan 08/11/94 



94 DHR 0198* Morgan 08/11/94 



93 DHR 0528 


Gray 


04/27/94 


93 DHR 0538 


Chess 


07/01/94 


93 DHR 1113 


Gray 


04/05/94 


93 DHR 1760 


West 


09/07/94 


93 DHR 1778 


West 


03/04/94 


94 DHR 0448 


Chess 


06/21/94 



94 DHR 0293 
94 DHR 0440 



Reilly 
Gray 



04/15/94 
06/27/94 



90CSE 1146 


Morgan 


08/11/94 


91 CSE0660 


Morgan 


08/11/94 


91 CSE 1183 


Morgan 


08/11/94 


92 CSE 0532 


Morgan 


07/13/94 


92 CSE 1199 


Morgan 


08/10/94 


92 CSE 1207 


Morgan 


08/10/94 


92 CSE 1268 


Morgan 


08/10/94 


92 CSE 1372 


Morgan 


08/10/94 


92 CSE 1591 


Morgan 


08/10/94 


93 CSE 0591 


Morgan 


08/11/94 


93 CSE 1077 


Reilly 


03/14/94 


93 CSE 1082 


Mann 


05/24/94 


93 CSE 1091 


Becton 


03/30/94 


93 CSE 1094 


Nesnow 


06/13/94 


93 CSE 1110 


Morgan 


08/11/94 


93 CSE 1 124 


West 


03/28/94 


93 CSE 1 125 


Becton 


03/30/94 


93 CSE 1 127 


Becton 


04/14/94 


93 CSE 1128 


Nesnow 


04/04/94 


93 CSE 1133 


Reilly 


04/18/94 


93 CSE 1135 


Nesnow 


06/13/94 


93 CSE 1136 


Becton 


08/22/94 


93 CSE 1139 


Becton 


03/30/94 


93 CSE 1140 


Nesnow 


06/28/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1149 


Gray 


04/26/94 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1151 


Morgan 


07/15/94 


93 CSE 1152 


Morgan 


08/04/94 


93 CSE 1155 


Morgan 


08/02/94 


93 CSE 1161 


West 


04/19/94 


93 CSE 1 162 


Nesnow 


06/16/94 


93 CSE 1 166 


Morrison 


06/16/94 


93 CSE 1167 


Reilly 


06/17/94 


93 CSE 1170 


Mann 


03/17/94 


93 CSE 1171 


Gray 


04/26/94 


93 CSE 1172 


Morrison 


04/20/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1180 


Morgan 


07/15/94 



1048 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Eric G. Sykes v. Department of Human Resources 
Morris Ray Bethel v. Department of Human Resources 
Willie C. Hollis v. Department of Human Resources 
Ernest N. Pruitt Jr. v. Department of Human Resources 
Michael P. McCay v. Department of Human Resources 
Robert Matthew Rossi v. Department of Human Resources 
Bernadette Cook v. Department of Human Resources 
Rawan Weigel v. Department of Human Resources 
Lem Person v. Department of Human Resources 
Bobby Lee McCullets Jr. v. Department of Human Resources 
Randall R. Rhodes v. Department of Human Resources 
Glen Nelson Washington v. Department of Human Resources 
Michael V. Dockery v. Department of Human Resources 
Floyd E. Bailey v. Department of Human Resources 
Dennis W. Nolan v. Department of Human Resources 
Robert Calvin Connor v. Department of Human Resources 
James D. Williams v. Department of Human Resources 
Mahalon Eugene White v. Department of Human Resources 
Marty Franzen v. Department of Human Resources 
Vaughn D. Pearsall v. Department of Human Resources 
Gerald L. Murrell v. Department of Human Resources 
Larry D. Dawson v. Department of Human Resources 
McDaniel Teeter Jr. v. Department of Human Resources 
King D. Graham v. Department of Human Resources 
Derek Watson v. Department of Human Resources 
Luther Borden v. Department of Human Resources 
Walter B. Lester v. Department of Human Resources 
William K. Whisenant v. Department of Human Resources 
Curtis C. Osborne v. Department of Human Resources 
Stanley J. Forsack v. Department of Human Resources 
Larry Cornelius Smith v. Department of Human Resources 
Robert C. Lee Jr. v. Department of Human Resources 
Sidney Ray Tuggle Jr. v. Department of Human Resources 
Michael A. Amos v. Department of Human Resources 
Benjamin McCormick v. Department of Human Resources 
Gregory N. Winley v. Department of Human Resources 
Ronald Brown v. Department of Human Resources 
James L. Phillips v. Department of Human Resources 
George Aaron Collins v. Department of Human Resources 
Samuel L. Dodd v. Department of Human Resources 
James W. Smith v. Department of Human Resources 
William A. Sellers v. Department of Human Resources 
Jerry Mclver v. Department of Human Resources 
Johnny B. Little v. Department of Human Resources 
Kenneth W. Cooper v. Department of Human Resources 
Nathan D. Winston v. Department of Human Resources 
Bobty Charles Coleman v. Department of Human Resources 
Anthony Curry v. Department of Human Resources 
Charles W. Norwood Jr. v. Department of Human Resources 
David L. Terry v. Department of Human Resources 
Audwin Lindsay v. Department of Human Resources 
Steven A. Elmquist v. Department of Human Resources 
Kelvin Dean Jackson v. Department of Human Resources 
Jerry R. Gibson v. Department of Human Resources 
Melvin Lewis Griffin v. Department of Human Resources 
Dennis E. Fountain Jr. v. Department of Human Resources 
Mark E. Rogers v. Department of Human Resources 
Daniel J. McDowell v. Department of Human Resources 
Edna VonCannon v. Department of Human Resources 
Darron J. Roberts v. Department of Human Resources 
Ephrom Sparkman Jr. v. Department of Human Resources 
Thomas A. Ayers v. Department of Human Resources 
Daniel Thomas Hefele v. Department of Human Resources 
Gilbert J. Gutierrez v. Department of Human Resources 
Alton D. Johnson v. Department of Human Resources 
Darryl C. Thompson v. Department of Human Resources 
Jeffery E. Holley v. Department of Human Resources 
Chester Sanders v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1181 


Becton 


04/20/94 


93 CSE 1188 


We8t 


07/11/94 


93 CSE 1191 


Becton 


05/09/94 


93 CSE 1197 


Nesnow 


06/28/94 


93 CSE 1198 


Morgan 


08/02/94 


93 CSE 1199 


Bee Ion 


08/22/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1212 


Gray 


08/26/94 


93 CSE 1214 


Morrison 


06/16/94 


93 CSE 1215 


Reilly 


06/17/94 


93 CSE 1219 


Nesnow 


06/16/94 


93 CSE 1221 


Morgan 


08/02/94 


93 CSE 1222 


Morgan 


07/15/94 


93 CSE 1227 


Mann 


07/07/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1261 


Nesnow 


08/22/94 


93 CSE 1264 


Morgan 


07/15/94 


93 CSE 1267 


Becton 


04/20/94 


93 CSE 1271 


Gray 


08/26/94 


93 CSE 1273 


Morrison 


07/07/94 


93 CSE 1274 


Morrison 


06/30/94 


93 CSE 1275 


Bee ton 


05/18/94 


93 CSE 1283 


Reilly 


06/30/94 


93 CSE 1284 


West 


06/23/94 


93 CSE 1287 


Nesnow 


06/28/94 


93 CSE 1291 


Bee ton 


08/22/94 


93 CSE 1299 


Gray 


09/19/94 


93 CSE 1301 


Morrison 


08/23/94 


93 CSE 1302 


Morrison 


06/30/94 


93 CSE 1303 


Reilly 


06/30/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1308 


West 


07/15/94 


93 CSE 1313 


Morgan 


08/02/94 


93 CSE 1316 


Becton 


06/14/94 


93 CSE 1318 


Becton 


06/29/94 


93 CSE 1326 


Reilly 


06/17/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1357 


Gray 


03/31/94 


93 CSE 1358 


Gray 


08/26/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1362 


Reilly 


06/30/94 


93 CSE 1363 


West 


06/23/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1365 


Nesnow 


07/07/94 


93 CSE 1368 


Morgan 


08/02/94 


93 CSE 1371 


Chess 


08/18/94 


93 CSE 1385 


West 


06/13/94 


93 CSE 1386 


Mann 


05/18/94 


93 CSE 1390 


Morrison 


07/15/94 


93 CSE 1392 


Reilly 


04/29/94 


93 CSE 1394 


West 


06/13/94 


93 CSE 1411 


Nesnow 


08/24/94 


93 CSE 1412 


Morgan 


08/02/94 


93 CSE 1414 


Chess 


05/13/94 


93 CSE 1415 


Mann 


05/03/94 


93 CSE 1416 


Gray 


09/19/94 


93 CSE 1417 


Morrison 


06/14/94 


93 CSE 1419 


West 


08/23/94 


93 CSE 1422 


Morgan 


08/04/94 


93 CSE 1431 


Morrison 


06/30/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1433 


Morrison 


05/13/94 


93 CSE 1434 


Reilly 


04/29/94 


93 CSE 1435 


Reilly 


06/30/94 


93 CSE 1436 


Reilly 


08/23/94 


93 CSE 1437 


West 


04/19/94 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1049 



CONTESTED CASE DECISIONS 



AGENCY 



Rodney Guylon v. Department of Human Resources 
Nelson Bennett v. Department of Human Resources 
Donald W. Clark v. Department of Human Resources 
William E. David Jr. v. Department of Human Resources 
Arthur Lee Carter v. Department of Human Resources 
Frank Reiff v. Department of Human Resources 
John J. Gabriel v. Department of Human Resources 
Robert Hayes v. Department of Human Resources 
Clark Anthony Bryant v. Department of Human Resources 
Timothy D. Evans v. Department of Human Resources 
Billy Edward Smith v. Department of Human Resources 
Allen D. Terrell v. Department of Human Resources 
Ray C. Moses v. Department of Human Resources 
Mickey Bridgett v. Department of Human Resources 
David Beduhn v. Department of Human Resources 
Bart Ransom v. Department of Human Resources 
William H. Simpson Sr. v. Department of Human Resources 
Clarence J. Gatling Jr. v. Department of Human Resources 
James D. McClure Jr. v. Department of Human Resources 
Christopher Ivan Smith v. Department of Human Resources 
Douglas L. Cherrix v. Department of Human Resources 
Dwayne Lamont Thompson v. Department of Human Resources 
Michael Edwin Smith v. Department of Human Resources 
Horace Lee Bass v. Department of Human Resources 
Michael Wilder v. Department of Human Resources 
William Howard Wright v. Department of Human Resources 
James A. Cephas v. Department of Human Resources 
Edward E. Furr v. Department of Human Resources 
Mark E. Campbell v. Department of Human Resources 
William Ellis v. Department of Human Resources 
Henry A. Harriel Jr. v. Department of Human Resources 
John H. Fortner Jr. v. Department of Human Resources 
Mike Johnson v. Department of Human Resources 
Barriet Easterling v. Department of Human Resources 
Dorsey L. Johnson v. Department of Human Resources 
Wade A. Burgess v. Department of Human Resources 
Billy Dale Beaney v. Department of Human Resources 
Gregory Harrell v. Department of Human Resources 
James E. Wiggins Sr. v. Department of Human Resources 
Tony A. Draughon v. Department of Human Resources 
Ruben Jonathan Bostillo v. Department of Human Resources 
Timothy J. Jones v. Department of Human Resources 
Randall E. Hunter v. Department of Human Resources 
Cyrus R. Luallen v. Department of Human Resources 
Willie Hawkins v. Department of Human Resources 
B.A. Sellen v. Department of Human Resources 
Alton E. Simpson Jr. v. Department of Human Resources 
Johnny T. Usher v. Department of Human Resources 
Tim H. Maxwell v. Department of Human Resources 
Charles Darrell Matthews v. Department of Human Resources 
John William Vance Jr. v. Department of Human Resources 
Bobby R. Sanders v. Department of Human Resources 
Michael S. Rhynes v. Department of Human Resources 
Denise L. Smith v. Department of Human Resources 
Brian Gilmore v. Department of Human Resources 
Jesse Jeremy Bullock v. Department of Human Resources 
Ronald E. Loweke v. Department of Human Resources 
Robert D. F^rker v. Department of Human Resources 
Charles F McKirahan Jr. v. Department of Human Resources 
Bennie E. Hicks v. Department of Human Resources 
Herbert Council v. Department of Human Resources 
Richard Rachel v. Department of Human Resources 
Alan V. Teubert v. Department of Human Resources 
Henry L. Ward Jr. v. Department of Human Resources 
Benjamin J. Stroud v. Department of Human Resources 
Charles Leonard Fletcher v. Department of Human Resources 
Tony A. Miles v. Department of Human Resources 
Dwayne L. Allen v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93 CSE 1439 


West 


04/21/94 


93 CSE 1440 


Nesnow 


08/31/94 


93 CSE 1441 


Nesnow 


05/13/94 


93 CSE 1442 


Nesnow 


05/02/94 


93 CSE 1445 


Morgan 


08/10/94 


93 CSE 1448 


Becton 


08/22/94 


93 CSE 1452 


Chess 


05/16/94 


93 CSE 1453 


Mann 


07/07/94 


93 CSE 1455 


Gray 


06/30/94 


93 CSE 1460 


Reilly 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1463 


Nesnow 


05/02/94 


93 CSE 1464 


Nesnow 


04/28/94 


93 CSE 1468 


Becton 


05/24/94 


93 CSE 1494 


Gray 


08/30/94 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE 1497 


West 


04/19/94 


93 CSE 1499 


Morgan 


08/02/94 


93 CSE 1500 


Becton 


05/13/94 


93 CSE 1510 


Gray 


07/07/94 


93 CSE 1512 


Gray 


05/13/94 


93 CSE 1515 


Morrison 


04/21/94 


93 CSE 1517 


Morrison 


08/26/94 


93 CSE 1520 


Morrison 


05/13/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1522 


Reilly 


08/26/94 


93 CSE 1523 


Reilly 


05/13/94 


93 CSE 1524 


Reilly 


06/17/94 


93 CSE 1537 


Nesnow 


05/19/94 


93 CSE 1540 


Morgan 


08/02/94 


93 CSE 1541 


Morgan 


08/04/94 


93 CSE 1542 


Morgan 


08/02/94 


93 CSE 1544 


Morgan 


08/04/94 


93 CSE 1560 


Mann 


05/18/94 


93 CSE 1565 


Gray 


09/19/94 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1569 


Morrison 


05/13/94 


93 CSE 1570 


Morrison 


08/26/94 


93 CSE 1571 


Morrison 


05/13/94 


93 CSE 1572 


Reilly 


07/07/94 


93 CSE 1574 


Reilly 


09/01/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1583 


Nesnow 


06/16/94 


93 CSE 1585 


Morgan 


08/02/94 


93 CSE 1586 


Morgan 


08/02/94 


93 CSE 1591 


Becton 


04/20/94 


93 CSE 1592 


Chess 


05/19/94 


93 CSE 1594 


Chess 


06/30/94 


93 CSE 1596 


West 


06/13/94 


93 CSE 1597 


Becton 


05/13/94 


93 CSE 1598 


Nesnow 


07/25/94 


93 CSE 1599 


Nesnow 


06/30/94 


93 CSE 1603 


Chess 


08/18/94 


93 CSE 1615 


Chess 


05/13/94 


93 CSE 1632 


Morrison 


06/14/94 


93 CSE 1635 


Reilly 


06/17/94 


93 CSE 1637 


Reilly 


06/29/94 


93 CSE 1640 


West 


06/14/94 


93 CSE 1641 


Nesnow 


07/25/94 


93 CSE 1643 


Nesnow 


07/25/94 


93 CSE 1644 


Morgan 


08/02/94 


93 CSE 1645 


Morgan 


08/10/94 


93 CSE 1646 


Morgan 


08/02/94 


93 CSE 1648 


Becton 


05/19/94 


93 CSE 1649 


Becton 


07/20/94 


93 CSE 1654 


Mann 


05/24/94 


93 CSE 1655 


Mann 


05/17/94 



PUBLISHED DECISION 
REGISTER CITATION 



1 050 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Earl Newkirk Jr. v. Department of Human Resources 
Joe C. Dean v. Department of Human Resources 
Vernon Bullock v Department of Human Resources 
Jessie Liles v. Department of Human Resources 
Raymond Scott Eaton v. Department of Human Resources 
Royston D. Blandford III v. Department of Human Resources 
Michael L. Franks v. Department of Human Resources 
Ronald Garrett v. Department of Human Resources 
Ervin C. Harvey v. Department of Human Resources 
Wanda Jean Lee Daniels v. Department of Human Resources 
Charles E. Colston v. Department of Human Resources 
Daron Wayne Smith v. Department of Human Resources 
John D. Melton v. Department of Human Resources 
Michael Lynn Jones v. Department of Human Resources 
Grayson Kelly Jones v. Department of Human Resources 
Larry Hayes v. Department of Human Resources 
Richard Eugene Dunn v. Department of Human Resources 
Fred Thompson Jr. v. Department of Human Resources 

JUSTICE 

Alarm Systems Licensing Board 

Alarm Systems Licensing Board v. George P. Baker 
Ifctrick P. Sassman v. Alarm Systems Licensing Board 
Christopher fete v. Alarm Systems Licensing Board 

Private Protective Services Board 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93 CSE 1680 


Morrison 


08/26/94 


93 CSE 1715 


Gray 


05/23/94 


93 CSE 1743 


Nesnow 


07/07/94 


93 CSE 1757 


Morgan 


08/02/94 


93 CSE 1761 


Bee ton 


06/29/94 


94 CSE 0095 


West 


04/19/94 


94 CSE 0142 


Chess 


08/16/94 


94 CSE 0227 


Reilly 


08/22/94 


94 CSE 0247 


Bee ton 


08/22/94 


94 CSE 0266 


Morgan 


08/02/94 


94 CSE 0280 


Reilly 


08/30/94 


94 CSE 0300 


Gray 


06/27/94 


94 CSE 0324 


Nesnow 


07/25/94 


94 CSE 0402 


Morgan 


08/02/94 


94 CSE 0433 


West 


09/15/94 


94 CSE 0456 


Nesnow 


08/22/94 


94 CSE 0494 


West 


07/29/94 


94 CSE 0639 


Morrison 


08/31/94 



PUBLISHED DECISION 
REGISTER CITATION 



93 DOJ 0457 


Nesnow 


03/10/94 


94 DOJ 0709 


Chess 


09/12/94 


94 DOJ 0710 


Chess 


09/12/94 



Rex Allen Jefferies v. Private Protective Services Board 
Larry C. Hopkins v. Private Protective Services Board 
Gregory K. Brooks v. Private Protective Services Board 
Stephen M. Rose v. Private Protective Services Board 
Lemuel Lee Clark Jr. v. Private Protective Services Boaid 
Dexter R. Usher v. Private Protective Services Board 
Frankie L. McKoy v. Private Protective Services Board 
Michael L. Bonner v. Private Protective Services Board 
Johnny R. Dollar v. Private Protective Services Board 

Training and Standards Division 

Curtiss Lance Poteat v. Criminal Justice Ed. & Training Stds. Comm. 
Willie David Moore v. Criminal Justice Ed. & Training Stds. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm. 
Steven W. Wray v. Sheriffs' Education & Training Standards Comm. 
J. Stevan North v. Sheriffs' Education & Training Standards Comm. 
Gregory Blake Manning v. Criminal Justice Ed. & Training Stds. Comm. 
Russell Pinkelton Jr. v. Sheriffs' Education & Training Stds. Comm. 
William Franklin Sheetz v. Sheriffs' Education & Training Stds. Comm. 
James M. Buie v. Criminal Justice Ed. & Training Stds. Comm. 
Nelson Falcon v. Sheriffs' Education & Training Stds. Comm. 



93 DOJ 0647 


Reilly 


08/01/94 


93 DOJ 1618 


Morrison 


03/07/94 


94 DOJ 0008 


Nesnow 


06/28/94 


94 DOJ 0359 


Nesnow 


05/19/94 


94 DOJ 0360 


Nesnow 


05/19/94 


94 DOJ 0648 


Reilly 


08/15/94 


94 DOJ 0706 


Chess 


09/09/94 


94 DOJ 0794 


Morrison 


09/14/94 


94 DOJ 0796 


Morrison 


08/24/94 



93 DOJ 0231 


Chess 


03/28/94 


93 DOJ 1071 


Nesnow 


04/11/94 


93 DOJ 1409 


Gray 


03/03/94 


93 DOJ 1803 


Chess 


06/29/94 


94 DOJ 0040 


Chess 


06/16/94 


94 DOJ 0048 


Gray 


03/29/94 


94 DOJ 0118 


Gray 


08/10/94 


94 DOJ 0196 


Chess 


06/16/94 


94 DOJ 0401 


Nesnow 


08/26/94 


94 DOJ 0611 


Mann 


08/12/94 



9:3 NCR 218 



MORTUARY SCIENCE 



Mortuary Science v. Perry J. Brown, & Brown's Funeral Directors 
PUBLIC EDUCATION 



93 BMS 0532 



Chess 



03/28/94 



Nancy Watson v. Boaid of Education 93 EDC 0234 

Janet L. Wilcox v. Carteret County Boaid of Education 93 EDC 045 1 

Annice Granville, Phillip J. Granville v. Onslow County Bd. of Education 93 EDC 0742 

Mary Ann Sciullo & Frank Sciullo on behalf of their minor child, 94 EDC 0044 
Samuel W Sciullo v. State Boaid of Education 



Chess 


02/28/94 


9:2 NCR 108 


Mann 


02/21/94 




Mann 


08/01/94 


9:11 NCR 863 


Gray 


07/22/94 





9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1051 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



STATE HEALTH BENEFITS OFFICE 

Linda C. Campbell v. Teachers & St Emp Major Medical Plan 
Timothy L. Coggins v. Teachers' & St Emp Comp Major Med Plan 
P.H.B. v. Teachers &. State Employees Comp Major Medical Plan 

STATE PERSONNEL 

Michael L. K. Benson v. Office of State Personnel 

Agricultural and Technical Stale University 

Linda D. Williams v. Agricultural and Technical State University 
Juanita D. Murphy v. Agricultural and Technical State University 
Thomas M. Simpson v. Agricultural and Technical State University 
Pricella M. Curtis v. A&T State University Curriculum & Instruction 

Department of Agriculture 

Donald H. Crawford v. Department of Agriculture 

Catawba County 

Sandra J. Cunningham v. Catawba County 

North Carolina Central University 

Dianna BlackJey v. North Carolina Central University 
Ha-Yil>ah Ha-She'B v. NCCU 

Cherry Hospital 

Charles F. Fields v. Cherry Hospital 

Gail Marie Rodgers Lincoln v. Cherry Hospital, Goldsboro, NC 27530 

Department of Commerce 

Ruth Daniel-fcrry v. Department of Commerce 

Department of Correction 

Leland K. Williams v. Department of Correction 

Elroy Lewis v. North Central Area - Dept of Correction, Robert Lewis 

Steven R. Kellison v. Department of Correction 

Bert Esworthy v. Department of Correction 

James J. Lewis v. Department of Correction 

Merron Burrus v. Department of Correction 

Lewis Alsbrook v. Department of Correction, Morrison Youth Institution 

Junius C. I^ge v. Dept. of Correction, Secy. FrankJin Freeman 

Richard Hopkins v. Department of Correction 

Alfred B. Hunt v. Department of Correction 

Charles Home v. Equal Emp. Opportunity Officer & Dept. of Correction 

Adrian E. Graham v. Intensive Probation/Tkrole 

Barry Lee Clark v. Department of Correction 

Edward E. Hodge v. Department of Correction 

Eastern Correctional Institution 

Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 
Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 

Guilford Correctional Center 
Ann R. Williams v. Guilford Correctional Center #4440 

McDowell Correctional Center 
Michael Junior Logan v. Kenneth L. Setzer, McDowell Corr. Ctr. 



93 INS 0410 


Bee ton 


04/22/94 




93 INS 0929 


MorriBon 


03/04/94 




94 INS 0345 


Gray 


08/23/94 


9:12 NCR 945 



93 OSP 1690 



94 OSP 0108 



93 OSP 1097 



89 OSP 0494 
93 OSP 0875 



94 OSP 0498 
94 OSP 0578 



93 OSP 0725 



91 OSP 

92 OSP 

93 OSP 
93 OSP 
93 OSP 
93 OSP 
93 OSP 

93 OSP 

94 OSP 
94 OSP 
94 OSP 
94 OSP 
94 OSP 
94 OSP 



1287 
1770 
0283 
0711 
1121 
1145 
1739 
1794 
0041 
0243 
0244 
0261 
0437 
0829 



Nesnow 



94 OSP 0160** 
94 OSP 0256** 



94 OSP 0428 



94 OSP 0546 



Reilly 



Reilly 



Nesnow 
Bee ton 



Morrison 
West 



Chess 



Chess 

Becton 

Chess 

Chess 

West 

West 

West 

Mann 

Chess 

Reilly 

Nesnow 

Morrison 

Chess 

Nesnow 



Nesnow 
Nesnow 



West 



08/23/94 



93 OSP 0089 


Chess 


03/23/94 


93 OSP 0708 


Morrison 


03/16/94 


93 OSP 1393 


Gray 


03/24/94 


94 OSP 0748 


Gray 


08/17/94 



Gray 



05/23/94 



04/29/94 



09/14/94 
04/13/94 



06/15/94 
09/09/94 



03/04/94 



02^2/94 
05/24/94 
06/15/94 
04/21/94 
08/31/94 
06/01/94 
07/20/94 
07/08/94 
06/16/94 
04/20/94 
06/16/94 
04/26/94 
09/12/94 
09/15/94 



07/20/94 
07/20/94 



06/22/94 



09/01/94 



9:4 NCR 292 



9:3 NCR 211 



9:1 NCR 63 



9:6 NCR 395 



1052 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Cosmetic Art Examiners 

Mary Quaintance v. N.C. State Boaid of Cosmetic Art Examiners 

Department of Crime Control and Public Safety 

Don R. Massenburg v. Department of Crime Control & Public Safety 
Fred L. Kearney v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 
Anthony R. Butler v. Highway Patrol 

Ruth P. Belcher v. Crime Control & Public Safety, State Highway Patrol 
Lewis G. Baker v. Crime Control & Public Safety, Office Adj. General 
William Smith v. State Highway Patrol 

Durham County Health Department 

Lylla Denell Stockton v. Durham County Health Department 

Elizabeth City State University 

James Charles Knox v. Elizabeth City State University 

Employment Security Commission of North Carolina 

Rejeanne B. LeFrancois v. Employment Security Commission of N.C. 

Department of Environment, Health, and Natural Resources 

Steven P. Karasinski v. Environment, Health, and Natural Resources 

Division of Marine Fisheries 

William D. Nicely v. Environment, Health, & Natural Resources 

FayetteviUe State University 

Roscoe L. Williams v. FayetteviUe State University 

Department of Human Resources 

Inez Latta v. Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

Rose Mary Taylor v. Department of Human Resources, Murdoch Center 

David R. Rodgers v. Jimmy Summervillc, Stonewall Jackson School 

Dr. Patricia Sokol v. James B. Hunt, Governor and Human Resources 

Bruce B. Blackmon, M.D. v. DHR, Disability Determination Services 

Craven County Department of Social Services 

Shirley A. Holland v. Craven Cry. Depl. /Social Services & Craven Cry. 
Nettie Jane Godwin (Lawhorn) v. Craven Cty. DSS & Craven Cty. 
Violet P. Kelly v. Craven Cty. Dept. of Social Services & Craven Cty. 

Durham County Department of Social Services 

Belinda F. Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 
Ralph A. Williams v. Durham County Department of Social Services 

Haywood County Department of Social Services 
Dorothy Morrow v. Haywood County Department of Social Services 

Pamlico County Department of Social Services 
Mrs. Dietra C. Jones v. Pamlico Department of Social Services 



94 OSP 0372 



Chess 



06/14/94 



90 OSP 0239 


Chess 


04/28/94 


91 OSP 0401 


West 


03/18/94 


92 OSP 1463 


Reilly 


03/21/94 


93 OSP 1079 


West 


08/30/94 


94 OSP 0190 


Gray 


09/06/94 


94 OSP 0572 


Mann 


07/12/94 


94 OSP 0816 


Morrison 


09/09/94 



93 OSP 1780 



94 OSP 0207 



93 OSP 1069 



93 OSP 0940 



92 OSP 1454 



93 OSP 0487 



93 OSP 0728 

94 OSP 0167 



94 OSP 0186 



94 OSP 0251 



Gray 



Gray 



West 



West 



Bee ton 



West 



05/25/94 



06/17/94 



04/08/94 



09/02/94 



05/04/94 



06/22/94 



93 OSP 0830 


Becton 


03/28/94 


93 OSP 1762 


Gray 


03/03/94 


93 OSP 0047 


Gray 


05/06/94 


94 OSP 0087 


Chess 


03/16/94 


94 OSP 0357 


Chess 


08/22/94 


94 OSP 0410 


Nesnow 


09/14/94 



Chess 
Reilly 



West 



Chess 



04/11/94 
09/13/94 



06/17/94 



08/09/94 



9:5 NCR 333 



93 OSP 1606 


Gray 


07/01/94 




93 OSP 1607 


Gray 


07/18/94 


9:9 NCR 655 


93 OSP 1805 


Reilly 


07/05/94 





9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1053 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



94 OSP 0344 

93 OSP 1604 

! Abuse Services 

94 OSP 0214 

94 OSP 0753 



Gray 



Bee ton 



Reilly 



Nesnow 



08/17/94 



03/18/94 



04/14/94 



08/24/94 



Lee County Health Department 
James Shacklebn v. Lee County Health Department 

Mental Health/Menial Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 

Wake County Mental Health . Developmental Disabilities, and Substance , 

Julia Morgan Brannon v. Wake County MH/DD/SAS 

Real Estate Appraisal Board 

Earl Hansford Grubbs v. Appraisal Board 

N.C. State University 

Laura K. Reynolds v. N.C. State University - Dept. of Public Safety 92 OSP 0828 Morgan 05/26/94 

Department of Transportation 

Phyllis W. Newnam v. Department of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, See'y. Dept. of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, See'y. Dept. of Transportation 

Betsy Johnston Powell v. Department of Transportation 

Arnold Craig v. Samuel Hunt, Secretary Department of Transportation 

Susan H. Cole v. Department of Transportation, Div. of Motor \fehicles 

Clyde Lem Hairston v. Department of Transportation 

Bobby R. Mayo v. Department of Transportation 

Tony Lee Curtis v. Department of Transportation 

Darrell H. Wise v. Department of Transportation 

Henry C. Puegh v. Department of Transportation 

Kenneth Ray Harvey v. Department of Transportation 

Bobby R. Mayo v. Department of Transportation 

Michael Bryant v. Department of Transportation 

University of North Carolina at Chapel Hill 

Eric W Browning v. UNC-Chapel Hill 

University of North Carolina at Greensboro 

James S. Wilkinson v. UNCG Police Agency 

UNC Hospitals 

Barry Alonzo Nichols v. UNC Hospitals Central Dist. Sect. 

Wake County School System 

Lula Mae Freeman v. Wake County School System 

The Whitaker School 

Dwayne R. Cooke v. The Whitaker School 

Winston-Salem State University 

Tonny M. Jarrett v. Winston-Salem State University Campus Police 

STATE TREASURER 

Retirement Systems Division 

Molly Wiebensonv. Bd./Trustees/Teacheis' & Stale Employees' Ret. Sys. 
Judith A. Dorman v. Bd./Trustees/Teaeheis' & State Employees' Ref. Sys. 
Nathan Fields v. Bd . /TrusteeaATeacheiB' &. State Employees' Ret. SyB. 



92 OSP 1799 


Morgan 


08/11/94 






93 OSP 0297* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0500** 


Morrison 


03/10/94 


9.1 NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 






93 OSP 0586 


Nesnow 


07/11/94 






93 OSP 0908 


Morrison 


07/15/94 






93 OSP 0944 


Chess 


02/28/94 






93 OSP 1004 


Nesnow 


09/01/94 






93 OSP 1037 


Reilly 


08/26/94 






93 OSP 1353 


Gray 


07/26/94 






93 OSP 1710 


Nesnow 


05/24/94 






94 OSP 0423 


Morrison 


08/17/94 






94 OSP 0632 


Gray 


08/23/94 






94 OSP 0728 


Chess 


08/15/94 







93 OSP 0925 



93 OSP 0850 



94 OSP 0509 



94 OSP 0576 



94 OSP 0328 



93 OSP 0953 



Morrison 05/03/94 



Chess 



08/22/94 



Morrison 06/15/94 



Morrison 06/28/94 



Chess 



Reilly 



06/02/94 



09/12/94 



9:5 NCR ^42 



92 DST 0015 

92 DST 0223 

93 DST 0161 



Morgan 05/26/94 

Morgan 08/11/94 

Morrison 05/18/94 



9:6 NCR 403 



1054 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



John C. Russell v. Bd. /Trustees/Teaches' & Stale Employees' Ret. Sys. 
Marion Franklin Howell v. Teachers' & State Employees' Retirement Sys. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System 
Connie B. Grant v. Bd. /Trustees/Teachers' & State Employees' Ret. Sys. 
James E. Walker, Ind. & Admin for the Estate of Sarah S. Walker v. Bd./ 

Trustees/N.C. Local Govt. Emp. Ret. System 
Elizabeth M. Dudley v. Bd. /Trustees/Teachers' & State Emps' Ret. Sys. 
Kenneth A. Glenn v. Bd. /Trustees/Teachers' & St Employees' Ret. Sys. 
Joseph Fulton v. Bd. /Trustees/Teachers' & State Employees' Ret. Sys. 
Deborah W. Stewart v. Bd. /Trustees/Teachers* & State Employees' 

Ret. Sys. and Anthony L. Hope & Derrick L. Hope 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


93 DST 0164 


West 


03/07/94 




93 DST 0475 


Nesnow 


08/04/94 


9:12 NCR 941 


93 DST 0785 


Bee ton 


03/18/94 


9:1 NCR 68 


93 DST 0883 


Chess 


06/15/94 




93 DST 1054 


Bee ton 


05/31/94 


9:7 NCR 490 


93 DST 1474 


Nesnow 


03/28/94 




93 DST 1612 


Morrison 


05/18/94 




93 DST 1731 


Bee ton 


05/25/94 




94 DST 0045 


Nesnow 


07/25/94 


9:10 NCR 768 



TRANSPORTATION 



Taylor & Murphy Construction Co., Inc. v. Department of TransporQtion 93 DOT 1404 
UNIVERSITY OF NORTH CAROLINA 



Chess 



08/24/94 



Heather Anne Porter v. State Residence Committee 
Nixon Omolodun v. UNC Physicians and Associates 



92 UNC 0799 
94 UNC 0295 



Nesnow 
Chess 



08/23/94 
06/27/94 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



1055 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF RICHMOND 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

94CPS0468 



CHARLIE E. MCDONALD, 
Petitioner, 



NORTH CAROLINA CRIME VICTIMS 
COMPENSATION COMMISSION, 
Respondent, 




This contested case was heard before Beecher R. Gray, administrative law judge, on July 29, 1994 
in Rockingham, North Carolina. The parties elected to make oral closing arguments and to forego further 
written arguments or proposed decisions. 

APPEARANCES 

Petitioner: Charlie E. McDonald, appearing pro se 

Respondent: Robert T. Hargett, Esq., Assistant Attorney General 

ISSUE 

Whether Respondent's denial of Petitioner's application for compensation under the North Carolina 
Crime Victims Compensation Act on grounds of contributory misconduct by Petitioner's deceased son is 
proper. 

FINDINGS OF FACT 

1. The parties received notice of hearing by certified mail more than fifteen (15) days prior to the 
hearing. 

2. Petitioner Charlie E. McDonald is the father of Donald McDonald who was killed by a gunshot 
wound to the back of the head on January 15, 1993. He was 29 years old. Petitioner is a resident of 
Rockingham, North Carolina, as was his son at the time of his death. 

3. Within two years before Donald McDonald's death, Petitioner learned that his son, the deceased, had 
a cocaine habit. Petitioner sought assistance for his son at a mental health department. Donald McDonald 
did not go into an inpatient treatment program at the time because he was serving a prison sentence for 
larceny. He later did attend some Alcoholics Anonymous meetings. 

4. After the deceased got out of prison, his cocaine problem worsened. At one point he became 
uncontrollable and was taken to the Hamlet Hospital by his family out of fear for his immediate safety and 
health. The Hospital kept him for two weeks and advised the family that Donald needed inpatient treatment 
at a specialized facility. The family consulted two facilities about treatment. One facility projected a $10,000 
cost and the other a $5,000 cost, neither of which the family or Donald could afford. 

5. On January 14, 1993, Donald, then living at his parents' home, drove his sister to work before 
midnight. After dropping his sister off, he picked up three other persons. In the front passenger seat was 
Terry Covington; in the right rear passenger seat was Ora Lee Brewington; and in the rear seat behind the 



1056 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



CONTESTED CASE DECISIONS 



driver was Herman Lee Covington. 

6. In the early morning hours of January 15, 1993, the deceased Donald McDonald drove the car with 
the other passengers into an area behind a house on Aberdeen Road, an area frequented by people who want 
to smoke crack cocaine or other drugs. 

7. During the morning of January 15, 1993, the Richmond County Sheriff's Department received a call 
that two bodies had been found behind a house off Aberdeen Road. Captain Sam Jarrell investigated and 
determined that the bodies were those of Donald McDonald and Ora Lee Brewington. Donald McDonald had 
been shot in the back of the head with a .38 caliber handgun. Ora Lee Brewington also had been shot with 
a .38 caliber handgun. Herman Lee Covington was convicted of second degree murder in the deaths of 
Donald McDonald and Ora Lee Brewington. 

8. Donald McDonald was found slumped over in the driver's seat of the car and photographed by 
Captain Jarrell. In his left hand was a pipe known to Captain Jarrell to be commonly used to smoke crack 
cocaine. In the right hand of Donald McDonald was a length of wire, also known to Captain Jarrell as a tool 
used in conjunction with the pipe for smoking crack cocaine. The contents of the pipe were not analyzed but 
appeared to Captain Jarrell to be a burned residue of crack cocaine. 

9. An autopsy was performed on Donald McDonald, establishing the cause of death as a single gunshot 
wound to the back of the head. The Autopsy report indicates that the deceased's blood alcohol content at the 
time of the autopsy corresponded to a 0.03% on the Breathalyzer scale. No chemistry was performed on the 
body of Donald McDonald. 

10. Petitioner filed a claim with Respondent on February 19, 1993. Respondent denied Petitioner's claim 
on March 21, 1994 on the basis of its finding that Donald McDonald was using illegal drugs at the time of 
his death and therefore engaged in contributory misconduct under G.S. 15B-1 1(b). Petitioner filed a petition 
for a contested case hearing on April 15, 1994. 

11. North Carolina General Statute Section 90-90(a)4 (1993) defines cocaine as a schedule II controlled 
substance. 

12. North Carolina General Statute Section 90-95(a)(3) (1993) makes it unlawful to possess a controlled 
substance outside of certain circumstances not present in this case. 

13. North Carolina General Statute Section 90-95(d)(2) (1993) provides that possession of a schedule II 
controlled substance is punishable as a class I felony. 

14. North Carolina General Statute Section 15B-ll(a) was amended, effective February 28, 1994, to 
include the following pertinent provision: 

(a) [a]n award of compensation shall be denied if: 



(6) [t]he victim was participating in a felony or nontraffic misdemeanor at or about the time that 

the victim's injury occurred. 

N.C. Gen. Stat. Section 15B-1 1(a)(6) N.C. Extra Session 1994, C. 3, p. 5. 

15. Donald McDonald was participating in the felony activity of possession of a schedule II controlled 
substance, cocaine, at or about the time his injury occurred on or about January 15, 1993. 



9:13 NORTH CAROLINA REGISTER October 3, 1994 1057 



CONTESTED CASE DECISIONS 



CONCLUSIONS OF LAW 

Based upon the foregoing findings of fact, I make the following conclusions of law. 

1 . The parties are properly before the Office of Administrative Hearings. 

2. Donald McDonald's death during the early morning hours of January 15, 1993 was caused by the 
criminally injurious conduct of Herman Covington who shot Donald McDonald in the back of the head. 

3. Even though neither cited by Respondent as a ground for denial nor argued by Respondent in the 
contested case hearing, G.S. 15B-1 1(a)(6), as amended by the Extra Session 1994, operates as a bar to 
recovery of compensation by Petitioner. 

4. Respondent's denial of Petitioner's application for crime victims compensation should be affirmed 
because compensation under the facts in this contested case is barred by G.S. 15B-1 1(a)(6). 

RECOMMENDED DECISION 

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that the 
North Carolina Crime Victims Compensation Commission affirm, on the basis of operation of G.S. 15B- 
11(a)(6), its decision denying crime victims compensation to Petitioner. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Crime 
Victims Compensation Commission. 

This the 2nd day of September, 1994. 



Beecher R. Gray 
Administrative Law Judge 



1058 9:13 NORTH CAROLINA REGISTER October 3, 1994 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



NORTH CAROLINA REGISTER 



October 3, 1994 



1059 



CUMULATIVE INDEX 



Pages 



CUMULATIVE INDEX 

(April 1994 - March 1995) 



Issue 



1 - 75 1 - April 

76 - 122 2 - April 

123 - 226 3 - May 

227 - 305 4 - May 

306 - 348 5 - June 

349 - 411 6 - June 

412 - 503 7 - July 

504 - 587 8 - July 

588 - 666 9 - August 

667 - 779 10 - August 

780 - 876 11 - September 

877 - 956 12 - September 

957 - 1062 13 - October 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

State Employees Combined Campaign, 878 

AGRICULTURE 

Plant Industry, 127 

COMMERCE 

Alcoholic Beverage Control Commission, 423 
Banking Commission, 884 
Energy Division, 4 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, Division of, 243 

CULTURAL RESOURCES 

Arts Council, 960 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 443, 825 

DEM/Air Quality, 80, 805 

Departmental Rules, 254 

Environmental Management, 81, 258, 352, 616, 959 

Health Services, 323, 370, 445, 834, 913, 1000 

Marine Fisheries Commission, 820, 989 

Mining Commission, 442 

NPDES Permit, 3, 232 

Radiation Protection Commission, 678 

Solid Waste Management, 171, 364 

Water Resources, 165, 255 

Wildlife Resources Commission, 38, 42, 84, 358, 830, 910, 999 



1060 



9:13 



NORTH CAROLINA REGISTER 



October 3, 1994 



CUMULATIVE INDEX 



Wildlife Resources Commission Proclamation, 125 

FINAL DECISION LETTERS 

Voting Rights Act, 2, 312, 506, 594, 958 

GENERAL STATUTES 

Chapter 150B, 780 

GOVERNOR/LT, GOVERNOR 

Executive Orders, 1, 123, 227, 306, 349, 412, 504, 588, 667, 877, 957 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Departmental Rules, 668 

Facility Services, 4, 128, 423, 509, 668, 890 

Medical Assistance, 318, 440, 513, 597, 964 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313, 430, 961 

Social Services, 136, 595, 802 

Vocational Rehabilitation Services, 434 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board, 99, 1030 

INSURANCE 

Departmental Rules, 891 
Financial Evaluation Division, 892 
Life and Health Division, 525, 905 
Medical Database Commission, 605 
Multiple Employer Welfare Arrangements, 76 
Property and Casualty Division, 892 
Special Services Division, 76 

JUSTICE 

Alarm Systems Licensing Board, 351, 614, 804 

Criminal Justice Education and Training Standards Commission, 149, 981 

Private Protective Services, 802 

Sheriffs' Education & Training Standards Commission, 670, 986 

State Bureau of Investigation, 234, 530 

LABOR 

Mine and Quarry Division, 239 
OSHA, 77, 160, 675, 906 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 
Auctioneers Licensing Board, 836 
Barber Examiners, 563 
Chiropractic Examiners, 376 
Cosmetic Art Examiners, 280, 1027 
Landscape Architects, Board of, 95 
Medical Examiners, 192, 565 
Mortuary Science, 720 



9:13 NORTH CAROLINA REGISTER October 3, 1994 1061 



CUMULATIVE INDEX 



Nursing, Board of, 45, 724 

Opticians, Board of, 845 

Optometry, Board of Examiners, 194 

Physical Therapy Examiners, 566 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96, 725 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

Professional Engineers and Land Surveyors, 728, 924 

Sanitarian Examiners, 730 

LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281, 378, 635, 742, 926, 1041 

PUBLIC EDUCATION 

Elementary and Secondary Education, 375, 540, 920 

SECRETARY OF STATE 

Land Records Management Division, 712 
Securities Division, 476, 616, 709 

STATE PERSONNEL 

Office of State Personnel, 477, 847 



TAX REVIEW BOARD 

Orders of Tax Review, 415 

TRANSPORTATION 

Highways, Division of, 85, 718, 923 
Motor Vehicles, Division of, 89, 276, 542 



1062 9:13 NORTH CAROLINA REGISTER October 3, 1994 









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